The Interesting Court Case of Texas v. White

Salmon P. Chase

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First, the Articles of Confederation had been superseded by the Constitution.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

58,000 Non-Citizens Voted In Texas State Elections, 95,000 Registered According To Attorney General-Zero Hedge

i do not consider the Evil Empire’s Vincy “Texas State government”,  to be anything else than an occupation force which is illegally occupying and oppressing the souls of the militarily occupied, Republic of Texas, but this shows the problem of the occupier having forced on the Republic of Texas, all the riff raft they could import to suppress the souls of the occupied republic of Texas.

John C Carleton

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https://www.zerohedge.com/news/2019-01-26/58000-non-citizens-voted-texas-state-elections-95000-registered-according-attorney

Carpet-Baggers

Carpetbagger was the pejorative term applied to Northerners who moved to the South after the Civil War, specifically those who joined state Republican parties formed in 1867 and who were elected as Republicans to public office. Southern Democrats immediately saw that the newcomers were corrupt and dishonest adventurers, whose property consisted only of what they could carry in their carpetbags (suitcases made of carpeting), who seized political power and plundered the helpless people of the South. This assessment of the carpetbagger became standard in late-nineteenth-century histories and retains its currency among some historians today. Since the 1950s, however, revisionist historians have challenged the validity of the traditional view and assessed the carpetbaggers more favorably. [Ed. note: It is a well-known maxim of war that ‘to the victor go the spoils.’ The victor in the War for Southern Independence has claimed, as part of his spoils, the right to record and enforce his point of view as the official and accepted history of the war.]

The Reconstruction Act of 1867 placed Southern governments under military rule. The South was divided into five military districts, each run by a general in the U.S. Army. The five districts were (1) Virginia; (2) North and South Carolina; (3) Georgia, Alabama, and Florida; (4) Mississippi and Arkansas; and (5) Texas and Louisiana. Tennessee was the only prior Confederate state that was not placed under military rule. Around 200,000 troops were placed in the South to enforce military rule.

Thousands of government officials were removed from office in the South and replaced with military commanders. Different commanders ruled in different ways. Some were very good at their jobs, and some were not. They had very few restrictions. They could be cruel and unfair and get away with it. It was a very harsh time for the population in the South.

One thing all military commanders did because they were told to do so by Congress was to place former slaves in positions in government. These former slaves knew nothing about government or money. They were not trained for their jobs. Nearly all were puppets under the control of army officials. The reaction was the KKK.

Military rule in the South lasted for 10 years, until 1877, when the Republican party agreed to return Southern states to home rule in exchange for their support of the Republican candidate for president, Rutherford B. Hayes.

 

A Texas Elementary School Speech Pathologist Refused to Sign a Pro-Israel Oath, Now Mandatory in Many States — so She Lost Her Job

 

This map compiled by Palestine Legal shows how pervasive various forms of Israel loyalty oath requirements have become in the U.S.; the states in red are ones where such laws are already enacted, while the states in the darker shade are ones where such bills are pending:

A children’s speech pathologist who has worked for the last nine years with developmentally disabled, autistic, and speech-impaired elementary school students in Austin, Texas, has been told that she can no longer work with the public school district, after she refused to sign an oath vowing that she “does not” and “will not” engage in a boycott of Israel or “otherwise tak[e] any action that is intended to inflict economic harm” on that foreign nation. A lawsuit on her behalf was filed early Monday morning in a federal court in the Western District of Texas, alleging a violation of her First Amendment right of free speech.

The child language specialist, Bahia Amawi, is a U.S. citizen who received a master’s degree in speech pathology in 1999 and, since then, has specialized in evaluations for young children with language difficulties (see video below). Amawi was born in Austria and has lived in the U.S. for the last 30 years, fluently speaks three languages (English, German, and Arabic), and has four U.S.-born American children of her own.

Amawi began working in 2009 on a contract basis with the Pflugerville Independent School District, which includes Austin, to provide assessments and support for school children from the county’s growing Arabic-speaking immigrant community. The children with whom she has worked span the ages of 3 to 11. Ever since her work for the school district began in 2009, her contract was renewed each year with no controversy or problem.

But this year, all of that changed. On August 13, the school district once again offered to extend her contract for another year by sending her essentially the same contract and set of certifications she has received and signed at the end of each year since 2009.

She was prepared to sign her contract renewal until she noticed one new, and extremely significant, addition: a certification she was required to sign pledging that she “does not currently boycott Israel,” that she “will not boycott Israel during the term of the contract,” and that she shall refrain from any action “that is intended to penalize, inflict economic harm on, or limit commercial relations with Israel, or with a person or entity doing business in Israeli or in an Israel-controlled territory.”

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Flags Of Texas

The first official flag of the Republic of Texas, designed by General Lorenzo de Zavala, adopted by the Convention held at Washington-on-the-Brazos, May 11, 1836, shortly after the victory at San Jacinto. This flag had a blue field with a white five-pointed star in its center. Around the star were the letters T-E-X-A-S. This flag, along with the Burnet Flag, served as a national flag of Texas until the current state flag was officially adopted as the then national flag by the Third Congress of the Republic of Texas held in Houston on January 21, 1839 and signed into law by President Mirabeau B. Lamar on January 25, 1839. Source: C. E. Gilbert in “A Concise History of Early Texas: As told by its 30 historic flags.”

Legislation authorizing this flag was introduced in the Congress of the Republic of Texas on December 28, 1838, by Senator William H. Wharton and was adopted on January 25, 1839, as the final national flag of the Republic of Texas

First Confederate National flag with 7 stars (March 4 – May 21, 1861)

Flag of the Confederate States of America (November 28, 1861 – May 1, 1863).

The Confederate Army of Trans-Mississippi Flag. This flag was used by Richard Taylor’s Army.

How Using Eminent Domain to Seize Land for a Border Wall Harms Texas Property Owners

Building Trump’s much-ballyhooed border wall will requiring using eminent domain to forcibly take the land of numerous property owners. If that happens, many of the property owners probably will not get anything like adequate compensation. A just-published study conducted by ProPublica and the Texas Tribune analyzed over 400 condemnations undertaken as a result of the Secure Fence Act of 2006, which authorized the construction of a much smaller barrier than Trump’s proposed wall. Here is their summary of their findings:

An investigation by ProPublica and the Texas Tribune shows that [the Department of] Homeland Security cut unfair real estate deals, secretly waived legal safeguards for property owners, and ultimately abused the government’s extraordinary power to take land from private citizens.

The major findings:

  • Homeland Security circumvented laws designed to help landowners receive fair compensation. The agency did not conduct formal appraisals of targeted parcels. Instead, it issued low-ball offers based on substandard estimates of property values.

  • Larger, wealthier property owners who could afford lawyers negotiated deals that, on average, tripled the opening bids from Homeland Security. Smaller and poorer landholders took whatever the government offered — or wrung out small increases in settlements. The government conceded publicly that landowners without lawyers might wind up shortchanged, but did little to protect their interests.

  • The Justice Department bungled hundreds of condemnation cases. The agency took property without knowing the identity of the actual owners. It condemned land without researching facts as basic as property lines. Landholders spent tens of thousands of dollars to defend themselves from the government’s mistakes.

  • The government had to redo settlements with landowners after it realized it had failed to account for the valuable water rights associated with the properties, an oversight that added months to the compensation process.

  • On occasion, Homeland Security paid people for property they did not actually own. The agency did not attempt to recover the misdirected taxpayer funds, instead paying for land a second time once it determined the correct owners.

  • Nearly a decade later, scores of landowners remain tangled in lawsuits. The government has already taken their land and built the border fence. But it has not resolved claims for its value.

The study’s findings are consistent with previous research on takings compensation, which I summarized in Chapter 8 of my book on eminent domain, The Grasping Hand. Scholars have repeatedly found that many property owners get less than the “fair market value” compensation required by Supreme Court precedent, and that this is particularly likely for those who are poor, legally unsophisticated, and lacking in political influence. Even those who do get fair market value compensation still often are not fully compensated for all their losses, because many owners attach “subjective value” to their land above and beyond its market price. Consider, for example, a homeowner who has lived in the same neighborhood for a long time, or a small business with established customer “good will” in the area that may be hard to replicate elsewhere.

During the 2016 presidential campaign, Donald Trump claimed that victims of eminent domain have nothing to complain about because “when eminent domain is used on somebody’s property, that person gets a fortune.” The history of the Secure Fence Act takings – and many other condemnations – proves otherwise. If it were really true that having your property condemned is a great way to make a fortune, the Donald Trumps of the world would be lobbying the government to take their property, instead of lobbying to condemn that of the politically weak in order to build parking lots for their casinos.

If Congress allocates money to build Trump’s border wall, the abuses that occurred with the Secure Fence Act takings are likely to be repeated on a much larger scale. Sadly, this would be yet another of the many ways in which immigration restrictions harm American citizens, as well as immigrants.

Ilya Somin is Professor of Law at George Mason University 

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