How secession was finally declared illegal.
In a legal examination of the right of secession no case has been thrown in our faces as Texas v. White. With this case the Supreme Court of the United States declared secession was not constitutional. The case concerned some government bonds owned by the State of Texas. By Texas law they could only be sold with the governor’s approval and signature. After secession, the State of Texas needed money to continue its war effort. The Texas legislature voided the requirement of the governor’s signature and sold the bonds. After the War, the Reconstruction government of Texas sued to reclaim the bonds on the grounds that the sale was illegal.
The only way that the Supreme Court had jurisdiction was if the suit was between “a State and Citizens of another State” (US Constitution, art. III, sec. 2, para. 1) and Texas had purported to secede from the Union. In order to write Radical Republican doctrine into the Constitution, Chief Justice Chase found it necessary to hold that secession was unconstitutional (Texas never left the Union), but that the Reconstruction government of Texas (a government created by the U.S. Congress) had standing before the Court. He did so in a single paragraph: The Articles of Confederation had declared the Union “perpetual”. The preamble to the 1789 Constitution had declared that the Union was even “more perfect”. “What can be indissoluble if a perpetual Union, made more perfect is not?” This doctrine of the perpetual Union made more perfect would be reaffirmed in White v. Hart where the Court declared that the State of Georgia had never left the Union. In making his ruling Chase ignored many of the legal arguments that had bearing on this case.
First, the Articles of Confederation had been superseded by the Constitution. The ratification of the Constitution had dissolved the “perpetual Union”. Chase also ignored the larger problem that the ratification of the Constitution initiated a secession from the government created by the Articles. Even though only nine States needed to ratify the Constitution for it to become part of “the supreme law of the land”, the Articles could only be altered by the approval of all thirteen States! Thus, when nine States had ratified the Constitution and put aside the Articles in favor of the Constitution this was an act of secession.
Second, it had never been assumed that the preamble was legally binding, but simply a statement of the intent of the Constitution. Thus, the preamble recognized that the Constitution was an attempt to form a more perfect union, but it did not legislate that “more perfect Union” as law.
Third, Chase stated that the seceding states had forfeited their rights, but not their obligations. He never addressed the question of how this could be if, as he contended, the States had never left the Union in the first place. If the Confederate States had never left the United States they would still retain all their obligations (White v. Hart) and all their constitutional rights. The doctrine of lost rights with retained obligations was a concept of the Radical Republicans created by them to reconstruct the South in their own image.
Fourth, Chase never addressed the fact that earlier Supreme Court decisions had declared Confederate State governments de facto governments (Thorington v. Smith, Delmas v. Insurance Co., and Mauran v. Insurance Co.) in all acts that did not further the aims of the rebellion. While he could have argued that acts supporting the secession could be punishable as treason (art. III, sec. 3) he never did. Interestingly, while these acts might have been considered treasonable, that did not in and of itself prove them to be unconstitutional (Yet another can of worms that Chase chose to ignore). Also, even though States were forbidden to “engage in War”, the Constitution contains an exception in the cases of actual or threatened invasion (art. I, sec. 3). While Chase could have argued that the invasion clause did not apply to federal troops seeking “to enforce constitutional law” he did not.
Fifth, Chase never addressed the constitutional question of the legality of secession, just declared it illegal. An interesting argument in favor of the right of secession can be found in “A View of the Constitution of the United States”, by William Rawle.
Chase basically ignored all previous case law and the supremacy clause, and accepted without supporting argument the standard Radical view of a one-sided secession: The Southern states had lost their rights, but not their obligations. Although Texas had not left the Union, it had forfeited its right to sue. This was a pretty shaky thesis; if Texas was still a State, article III give it the right to sue. Justice Grier, the lone dissenter, protested, saying that if Texas had not left the Union, it had the power to repeal its own laws. Chase and company couldn’t accept that line of reasoning without destroying the Reconstruction Act.
Charles Fairman in “History of the Supreme Court of the United States, vol. VI, Reconstruction and Reunion 1864-88, part I”, says that the objective of this particular decision was to promote Chase’s firm belief that suffrage should not be limited by the laws of the past. He wanted a new start in who would govern the state, and required that the new citizens created by the fourteenth amendment participate in making the new start. Most of the Southern States had now completed that course of restoration (reconstruction). However, Texas was not of that number. Texas remained subject to the declaration of the Reconstruction Act. Its government was not “legal” but “provisional only”. “It suffices to say,” the Chief Justice concluded, “that the terms of the Acts necessarily imply recognition of existing governments; and that in point of fact, the governments thus recognized, in some important respects, still exist.” The conclusion was that the suit was properly brought and was within the original jurisdiction of the Court. This ruling also legitimized and “constitutionalized” the Reconstruction governments created by the Radical Republicans.
Professor David P. Currie, University of Chicago Law School, in, “The Constitution in the Supreme Court: The First Hundred Years,1789-1888” says, “In Texas v. White the Court went out of its way to embrace the Radical position that secession and all acts that served it were illegal, that the seceding states had nevertheless forfeited their rights, and that Congress could determine under the guarantee clause how they were to be governed. It did so essentially by fiat, without serious consideration of the opposing arguments … In Texas v. White, Chase finally succeeded in writing most of the Radical philosophy of Reconstruction into the Constitution.”
Courtesy of Mike Purdy
Confederate Memorial Camp #1432
Sons of Confederate Veterans
Stone Mountain, Georgia