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First of all, dicta are like footnotes and are found outside of the main text of the opinion. Dicta are not precedent, but everything in the opinion proper is precedent, save that (as in Bush v Gore) it is established not to be precedent.
Second of all, the nature of Texas at the time of the subject bond transactions is a central issue in the case, as only an actual state has standing to bring an action in the Supreme Court. The discussion in that matter is thus not some sort of unmeaningful side banter, but a pillar on which the remainder of the opinion must stand. Here is some of Chief Justice Chase's thinking on the matter...
It's widely agreed it's dicta. It was off topic. The case could have been settled without discussing secession.
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The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations.
Actually, anyone who's studied it, knows the colonies never were very close, and were reluctant to band together.
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It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation.
Actually they squabbled even during the war. New York, Vermont and New Hampshire nearly destroyed any sort of union. The Southern States largely opposed the Revolution until the British began massacres, etc., down there.
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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."
However, Article II of the Articles says: "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled."
The union under the Articles was dissolved at the constitutional convention (this is one reason many such as Warren Burger have warned against one, a convention could do whatever it wishes). Furthermore, they were more than willing to allow a state to leave the union by simply not ratifying the Constitution. Article VII of the Constitution:
"The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same."
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When Texas became one of the United States, she entered into an indissoluble relation. The union between Texas and the 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.
Except for that pesky 10th Amendment. As secession is not prohibited, it's allowed. It would make no sense for the Founders to have created a government that would prohibit what they themselves did, secession.
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I don't think he left too many stones unturned, there...
He made a fool of himself.
In addition to what I pointed out above, the fact is, Congress and the President treated Texas as if it had seceded and had to be re-admitted to the Union. Chase said the state had never left the Union. If Chase was right, Reconstruction was illegal (a military occupation of a state, no representation, etc., etc.), yet it continued for several years after Chase's decision.
Yes, it was dicta. Of no legal consequence. We will just have to agree to disagree on that one...
Well, I can't actually agree, but I don't have any other option either.
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Originally Posted by TexasReb
That Texas was a state of standing at the time (1869) is kinda iffy. When convenient (ala' for the purpose of Chase) it was deemed to be so. When it suited the Radical Reconstuctionists, it was a conquered subject.
Chase differentiates the state as the national entity it had become upon joining the union from the unlawful government which had usurped and run the state during the war. Maybe something like a stolen car being still the property of its rightful owner even while it is beng driven around town by the thief.
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Originally Posted by TexasReb
The Chief Justice's logic -- as I said earlier (even though I realize you don't agree) was at least largely based upon a desire to justify the Lincoln administations war policy. Which had the same ambiguity. When it suited, he considered the Southern states as a part of the country in rebellion. When it didn't, he sanctioned all the measures which "laws of war" reserved for a recognized nation (i.e. blockades, prisoner exchange, etc)
I don't know that Chase followed Lincoln so much as they both followed what had come before and preceded what came after. There is the appearance of that word "indivisible" in the Pledge of Allegiance to consider after all.
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Originally Posted by TexasReb
Do you really think the individual states (recognized as such by the Treaty of Paris) would have entered into a compact with one another if they knew they were giving up a right they had just excercised by seceeding from England? C'mon. This just defies all common-sense, if nothing else.
They didn't secede. They launched and fought a revolution, a right that is contained in the Constitution.
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Originally Posted by TexasReb
A "union" by definition is voluntary.
It would be if it were defined as voluntary, but when it is defined as perpetual, things would seem to be otherwise.
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Originally Posted by TexasReb
I have said before, secession may have unwise, rash-action, flat stupid (many Southern men such as Robert E. Lee and Sam Houston believed it was). But it did NOT violate the ever underlying principle the Founding Fathers embraced. To wit: Government derives its power from the consent of the governed.
Well and good, I suppose, but the means used in seeking to withdraw consent was not one rightfully available to them.
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Originally Posted by TexasReb
BTW -- As I recall, both New York and Kentucky (later) had provisions for resuming -- if they felt it necessary -- the said soveriegn powers they delegated to the federal government...
There was no way actually to assert provisions. New York in particular provided its notice of ratification within a long list of expectations and hoped for corrections that they trusted the new Congress would address at an early time, but this was a ratification nonetheless. Once done, there was no way to unratify again.
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Originally Posted by TexasReb
And Lincoln was wrong (IMHO). He even contradicted -- in the address you speak of -- things he had said in his earlier career as to the seeming right of any people to use proper means and sever connections with the larger body politic.
The flip-flopper standard is a weak one. Many great men have held different views of the same issue under different conditions and at different times in their lives. I don't know why an evolution in thinking would be pertinent.
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Originally Posted by TexasReb
Speaking of, Lincoln once tried to (in justifying his decision to coerce the South) -- and this is simply absurd -- make the case that the Union was responsible for the formation of the individual states. Oh man...even you might agree this is just nuts! LOL
I don't recognize the quote from the description. I'd want to see the actual text before concluding it to have been absurd.
A typically ridiculous assertion built upon hyperbole of the left about the right.
The real current right-wing is the old center in this nation in case you've lost your way. The real left is the old "loyal opposition" who Mort Sahl had marked on his infamous old chalkboard to the left of the Republican Party, but still Americans. They ain't there anymore. They've wandered so far out into deep left-field that they're longer relevant. And they're about to learn that precise lesson come November.
The gratuitous, self-indulgence of the "plant mines" reference isn't even worthy of comment.
How dumb are you?
There are centrists, and extremists to BOTH sides of that center.
Yes it did. As the Constitution would only apply to those states that ratified it, and any others would become independent.
No, it didn't. The Philadelphia Convention was called pursuant to the sparsely attended Annapolis Convention of the previous year and each was specifically convened for the purpose of developing amendments to the Articles that would address what were emerging as serious inefficiencies. No delegate arrived at the Philadelphia Convention expecting to write a new Constitution, and the very idea of it was first kept within secret committees
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Originally Posted by arctichomesteader
Article VII: "The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same."
Yes, this was part of the potential transition mechanism. It set out when a new government organized under the new rules would begin to take shape and function, but the old one was not yet set to go away. Once a ninth ratification was recorded in June 1788, the Continental Congress continued to meet, busying itself principally with setting up elections for the new Senators and Congressmen and preparing for a transfer of authority. While it failed to achieve a quorum, the last session of the Continental Congress was held on March 2, 1789. The first session of the First Congress convened on March 4, 1789. Two states -- NC and RI -- had not yet ratified by that date, so they went without representation. They did not cease to be states. They were still subject to the existing laws, treaties, and taxes of the nation. They simply had no say in the proceedings. The nation did not change. Only the charter for its governance did.
It's widely agreed it's dicta. It was off topic. The case could have been settled without discussing secession.
The Court does not decide the central issues of a case in dicta.
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Originally Posted by arctichomesteader
Actually, anyone who's studied it, knows the colonies never were very close, and were reluctant to band together.
Quite so, and the history of all that has been well recorded. Squabbling and welching had become rampant, a part of the inefficiency that the several amendment conventions had hoped to clear up. This does not contravene the flow of the nation's early history as portrayed by Chase.
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Originally Posted by arctichomesteader
The union under the Articles was dissolved at the constitutional convention.
No, it wasn't. See the previous post.
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Originally Posted by arctichomesteader
...this is one reason many such as Warren Burger have warned against one, a convention could do whatever it wishes.
That would be a constitutional convention as convened under the current Constitution, which the 1787 Convention plainly was not.
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Originally Posted by arctichomesteader
Except for that pesky 10th Amendment. As secession is not prohibited, it's allowed. It would make no sense for the Founders to have created a government that would prohibit what they themselves did, secession.
You could have made the argument credibly if not popularly in 1858. You can't today.
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Originally Posted by arctichomesteader
In addition to what I pointed out above, the fact is, Congress and the President treated Texas as if it had seceded and had to be re-admitted to the Union. Chase said the state had never left the Union. If Chase was right, Reconstruction was illegal (a military occupation of a state, no representation, etc., etc.), yet it continued for several years after Chase's decision. The feds tried to have their cake and eat it too.
You know, sometimes I wonder how much of this Tea Party hatred goes back to the Civil War. In any case, your complaint is explained again in Chase's distinction between the state as a national entity and the unlawful government that had come to control it.
It did! One of my yankee liberal friends and his wife...who are always wrong. But we have a good time with it all.
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Well, I can't actually agree, but I don't have any other option either.
Hell, neither of us do!
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Chase differentiates the state as the national entity it had become upon joining the union from the unlawful government which had usurped and run the state during the war. Maybe something like a stolen car being still the property of its rightful owner even while it is beng driven around town by the thief.
True, he did (and to his credit!). But it still begs the original question and issue.
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I don't know that Chase followed Lincoln so much as they both followed what had come before and preceded what came after. There is the appearance of that word "indivisible" in the Pledge of Allegiance to consider after all.
This is where we truly part company. As an aside, the Pledge of Allegiance was not even a consideration until MANY years after the War Between the States. And when most say it, it is really more of an affirmation of faith -- and affection for --the United States...than it is as an underlying contemplation on the nuances of the wording.
To the point itself, neither Chase nor Lincoln (IMHO) would have been comfortable sitting down with a Jefferson or Washington...
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They didn't secede. They launched and fought a revolution, a right that is contained in the Constitution.
I agree with the last part, in many ways. They didn't secede? Then what did they do?
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It would be if it were defined as voluntary, but when it is defined as perpetual, things would seem to be otherwise.
Like the words "well regulated" as concerns the 2nd Amendment, the term "perpetual" had a bit of different meaning/intent in those days. OK..but welll, maybe that is a bit too strong...
I don't know if you saw my earlier post when I quoted the CSA Constitutions' preamble. It refered to a PERMANENT federal goverment. It was more strongly worded -- in a strictly semantic sense --than the AOC or original Constitution, was.
BUT... think it is obvious it NEVER intended to mean the states which formed the CSA could not get out of it if they wanted. That would make no sense. Niether would it have the colonies.
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Well and good, I suppose, but the means used in seeking to withdraw consent was not one rightfully available to them.
By what authority was it denied?
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Once done, there was no way to unratify again.
Sorry, but it doesn't quite hold water. The essential premise is predicated upon that government derives its powers from the consent of the governed. I don't know of anything apart from that...
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I don't recognize the quote from the description. I'd want to see the actual text before concluding it to have been absurd.
Here it is:
Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government and to form one that suits them better. Nor is this right confined to cases in which the people of an existing government may choose to exercise it. Any portion of such people that can, may make their own of such territory as they inhabit. More than this, a majority of any portion of such people may revolutionize, putting down a minority intermingling with or near them who oppose their movement.
Lincoln on the floor of Congress, 13 January 1848
Congressional Globe, Appendix
1st Session 30th Congress, page 94
One would think that if secession were a viable option one would think that the Framers wouldn't have neglected to put such a provision in the Constitution or at the very least discussed the issue.
What say you, did they just forget or perhaps it just wasn't an option?
they did not leave it out, it is not mentioned in the Constitution at all meaning that the act of secession is a right left to the states and not the central goverment.
the civil war did not answer the legality of whether secession was legal or not.
This certainly is your right, though you might exercise it more judiciously. To wit...
The report of May 31 by Madison does not relate to secession at all. The subject of that debate was the power (agreed to without debate) of the Congress to negate state law that contravened the Constitution. At Madison's suggestion that an ultimate federal power of force against a delinquent state would prove impractical and counter-productive, consideration of the phrase conferring such power was postponed and the Convention then adjourned for the day.
Well, it was June 19, so not as early on as all that, and the quote is again taken too liberally out of context. The report is actually from the pleadings of Mr. Patterson of New Jersey concerning the nature and operation of various forms of compact and contract generally. It does not refer specifically to either the then existing Articles of Confederation or to the Constitution then in progress.
These comments were discussed earlier in the thread, and they refer not to secession at all, but to the entirely separate matter of nullification, this in regard to passage of the Alien and Sedition Acts.
This is hardly the only or chief purpose to which an ignoring of historical fact is lately put. See the above.
The New York quote is from its notice of ratification of the Constitution, by which it became the eleventh state to ratify. To an extent greater than any of the others, New York used the opportunity to set out a sort of "signing statement" in which it laid out a nearly entire Bill of Rights and other sorts of corrections and clarifications of the Constitution of which it encouraged and expected the earliest possible consideration from the new Congress. While important politically at the time, these pleadings had no weight at law then, and they have none now. Neither New York nor any other state has any special claim or reservation to powers that is not either tolerated or afforded by the Constitution.
You are inventing here motives and processes that never existed. The Convention of 1787 was convened to amend the Articles of Confederation that had proved unworkable as a means of governance of the perpetual union that it had established. That union was not dissolved by any stretch of the imagination. It's governing charter was merely updated, as it has been to lesser degree on various occasions since. The delegates to the Convention were both familiar and comfortable with the notion of "perpetual union" because they had been living and working in one for nearly a decade. No state accceded to the union by its ratification of the Constitution. All were already members of it, else they would not have had a vote to begin with.
Well, yes, the fact that it was decided in 1869 does place it after the Civil War, and prior to that time, there was no specific ruling on the issue of secession, though there had certainly been much despising and discouragement of the notion. Otherwise, I should recommend that you seek to construct arguments that do not depend upon an abandonment of the Rule of Law. You would do well to come to terms with the fact that you do not live in the antebellum republic. That era, like the era of earlier confederacy, proved unworkable, and the nature of the republic was therefore altered. You may seek to alter it again, but not through secession. There simply is no right of that.
So what you are basically saying is that there is no way to ever escape an oppressive regime, other than by overthrowing the government (i.e., a rebellion). But a rebellion is just as illegal as secession{In your opinion}. And since you oppose secession I suppose you think Tibet and Taiwan should belong to China in perpetuity and that Russia has a claim to Georgia, and for that matter that Britain has a claim to the United States.
Not to mention that the reason for secession would be that our government is no longer abiding by the law or the Constitution in the first place.
Mr. Madison's PUBLIC writings in support of ratification helped sell the people of the several States on the supposed relative benefits of ratifying the new Constitution. And Mr. Madison's PUBLIC writings prior to the election of 1800 helped sell the people of the several States on the supposed benefits of the republican agenda. That is not only "settled judgment," but indisputable historical fact.
BTW-{Chief Justice Chase, in his 1869 opinion in Texas vs. White (from which, btw, he should have recused himself, having been a Lincoln cabinet member through over three years of the Civil War}
Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States, would bind the minority; in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes; or by considering the will of a majority of the States, as evidence of the will of a majority of the people of the United States. Neither of these rules has been adopted. Each State in ratifying the Constitution, is considered as a sovereign body independent of all others, and only to be bound by its own voluntary act. In this relation then the new Constitution will, if established, be a federal and not a national Constitution. Federalist, no. 39, James Madison, 16 Jan. 1788
It was the secession of those States from the Articles that caused our current Constitution to be formed. "If the States look with apathy on this silent descent of their government into the gulf [of consolidation] which is to swallow all, we have only to weep over the human character formed uncontrollable but by a rod of iron, and the blasphemers of man as incapable of self-government become his true historians."
--Thomas Jefferson to Charles Hammond, 1821.
Your Trist letter-
From the letter: The compact can only be dissolved by the consent of the other parties, or by usurpations or abuses of power justly having that effect.
“Each state enjoys sovereign power.”
— Gouverneur Morris
(1752-1816) represented Pennsylvania in the Constitutional Convention of 1787, author of large sections of the Constitution for the United States, credited as the author of its Preamble
Source: Commentaries on the Constitution, Vol. III, p 287
“The thirteen States are thirteen Sovereignties.”
— James Wilson
(1742-1798) Member of Continental Congress, signed Declaration of Independence; U.S. Supreme Court Justice and delegate from Pennsylvania
Source: Commentaries on the Constitution, Vol. III, p 287
Marshall too [Link], back when he was part of the Virginia ratification convention, which also by the way said they could resume their own governance.
The state governments did not derive their powers from the general government; but each government derived its powers from the people, and each was to act according to the powers given it. Would any gentleman deny this? He [Marshall] demanded if powers not given were retained by implication. Could any man say so? Could any man say that this power was not retained by the states, as they had not given it away? For, says he, does not a power remain till it is given away? ...... All the restraints intended to be laid on the state governments (besides where an exclusive power is expressly given to Congress) are contained in the 10th section of the 1st article.
As Thomas Jefferson said:
I consider the foundation of the Constitution as laid on this ground: That " all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people." [XIIth amendment.] To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.
Even Daniel Webster of Massachusetts - At one time thought secession was Constitutional.
If the South were to violate any part of the Constitution intentionally and systematically, and persist in so doing, year after year, and no remedy could be had, would the North be any longer bound by the rest of it? And if the North were deliberately, habitually, and of fixed purpose to disregard one part of it, would the South be bound any longer to observe its other obligations? I have not hesitated to say, and I repeat, that if the Northern States refuse, willfully and deliberately, to carry into effect that part of the Constitution which respects the restoration of fugitive slaves, and Congress provide no remedy, the South would no longer be bound to observe the compact. A bargain cannot be broken on one side and still bind the other side.
Try out this..... IN CONGRESS, JULY 4, 1776
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
(”Treaty with Great Britain,” in Charles Eliot, ed., The Harvard Classics, vol. 43, American Historical Documents, p. 175
His Britannic Majesty acknowledges the said United States, viz. New Hampshire, Massachusetts Bay, Rhode Island, and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, to be free, sovereign and independent States; and he treats with them as such, and for himself, his heirs and successors, relinquishes all claims to the Government, proprietory and territorial rights of the same, and every part thereof.
The 1788 New York Ratification Convention had this to say about what the Constitution meant to them (Source):
Ratification of the Constitution by the State of New York; July 26, 1788. (1) WE the Delegates of the People of the State of New York, duly elected and Met in Convention, having maturely considered the Constitution for the United States of America, agreed to on the seventeenth day of September, in the year One thousand Seven hundred and Eighty seven, by the Convention then assembled at Philadelphia in the Common-wealth of Pennsylvania (a Copy whereof precedes these presents) and having also seriously and deliberately considered the present situation of the United States, Do declare and make known. ...That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; ...
... Under these impressions and declaring that the rights aforesaid cannot be abridged or violated, and that the Explanations aforesaid are consistent with the said Constitution ... We the said Delegates, in the Name and in the behalf of the People of the State of New York Do by these presents Assent to and Ratify the said Constitution.
Last edited by Coon dog; 01-18-2010 at 06:06 AM..
Reason: coffee
True, he did (and to his credit!). But it still begs the original question and issue.
I'm not sure how. The original question was whether Texas had status as a state despite its act of secession during the war. Not only does the answer influence determinations concerning the apllicability of law to fact in the case proper, but as Texas was the plaintiff in an original bill, if it were not a state, the case could not have proceeded. Chase answers the question directly and thoroughly, based on what were already known and accepted standards and thinking.
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Originally Posted by TexasReb
This is where we truly part company. As an aside, the Pledge of Allegiance was not even a consideration until MANY years after the War Between the States. And when most say it, it is really more of an affirmation of faith -- and affection for --the United States...than it is as an underlying contemplation on the nuances of the wording.
It was written in the summer of 1892, and the original wording was very carefully considered by the author who himself put particular emphasis on "indivisible". Certainly people today if they ever recite the Pledge do so in at least a detached manner. I raised the point in furthering into the future a continuum of thought concerning the perpetual nature of the union.
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Originally Posted by TexasReb
To the point itself, neither Chase nor Lincoln (IMHO) would have been comfortable sitting down with a Jefferson or Washington...
I don't know. Lincoln was 17 years old when Jefferson died. Chase was 18. They certainly may have disagreed on things as men will do, but I expect that the foursome would actually have looked forward to a chance to sit down together.
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Originally Posted by TexasReb
I agree with the last part, in many ways. They didn't secede? Then what did they do?
It has been widely reported that they engaged in a revolution, which I have no reason to doubt. The right of revolution is confirmed in the Constituition. The right of secession is not. Some will try to take the 10th Amendment as a means by which to incorporate powers that they can imagine without limit as justly belonging to the states as they are not reserved to the feds. This is cheating, especially if evidence should exist pointing to the notion of the power's never having been admitted to or meant to exist at all.
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Originally Posted by TexasReb
Like the words "well regulated" as concerns the 2nd Amendment, the term "perpetual" had a bit of different meaning/intent in those days. OK..but welll, maybe that is a bit too strong...
Having looked, I've found no indication of the word having had any distinctly different definition at the time. It was commonly used in association with things that are presumed to have no end, such as hope, honor, faith, or service to the Lord, but never that I have come across in the sense of "perpetual until next week" or "perpetual for the time being".
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Originally Posted by TexasReb
I don't know if you saw my earlier post when I quoted the CSA Constitutions' preamble. It refered to a PERMANENT federal goverment. It was more strongly worded -- in a strictly semantic sense --than the AOC or original Constitution, was.
Yes, I saw it. The permanency of the Confederacy was of course undone by agents beyond their control, so no test of the strength of their commitment was ever made. But they would have encountered some issue without doubt if member states had felt free to come and go with repsect to the CSA as they might have seen fit to at this time or that.
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Originally Posted by TexasReb
BUT... think it is obvious it NEVER intended to mean the states which formed the CSA could not get out of it if they wanted. That would make no sense. Niether would it have the colonies.
If it were so obvious, there would not now or ever have been debate of it, and particularly not debate in which the obvious side keeps coming up short. I suspect myself that among the long-lived founders and certainly among their immediate successors, there was some kicking of oneself for not having thought to include specific language barring simple secession.
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Originally Posted by TexasReb
By what authority was it denied?
Sorry, but it doesn't quite hold water. The essential premise is predicated upon that government derives its powers from the consent of the governed. I don't know of anything apart from that.
This is certainly an important concept, but it is not fractal, in that it looks different at different levels of magnification. The nature of a representative republic based on democratic principles is that some portion of the population will always be subject to governance without its consent. Tens if not hundreds of millions gave no consent at all for an improper war in Iraq, but there was no rush to secession over it. Here we have something as benign as modernizing a health care system that is rapidly driving the nation toward further financial ruin, and this is somehow taken as a sign of the over-reach of an out-of-control government necessitating disolution of the union? This seems a little far-fecthed.
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Originally Posted by TexasReb
Here it is:
Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government and to form one that suits them better. Nor is this right confined to cases in which the people of an existing government may choose to exercise it. Any portion of such people that can, may make their own of such territory as they inhabit. More than this, a majority of any portion of such people may revolutionize, putting down a minority intermingling with or near them who oppose their movement.
Lincoln on the floor of Congress, 13 January 1848
Congressional Globe, Appendix
1st Session 30th Congress, page 94
Well, it's an endorsement of revolution as the eternal right of oppressed peoples, but it doesn't go much further than that.
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