Texas v. White (1869) – Guest Essayist: Marshall DeRosa

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TEXAS v. WHITE ET AL., 74 U.S. 700 (1869) is one of the most important decisions made by the Supreme Court, because it addresses the nature of the Union. More specifically, is the Union bound together through the consent of the States or the coercive power of the United States government.

The essential facts of the case are somewhat obscure. In 1851 the U.S. Congress transferred to the State of Texas $10,000,000 in bonds. The Texas Legislature mandated that the Texas governor endorse the bonds prior to transferring them to private parties. After Texas seceded from the Union, the Texas legislature in 1862 repealed the mandate that the bonds be endorsed by the governor. In 1866, while Texas was under Reconstruction, Texas refused payment to George White and others who sought to redeem them. On an original appeal to the U.S. Supreme Court, the provisional government of Texas sought relief from making payment on the bonds. The Supreme Court focused on whether the 1862 Texas legislature was authorized to repeal the mandate that the governor endorse the transfer of the bonds to private parties. Texas seceded from the Union on February 1, 1861, and was admitted to the Confederate States of America on March 2, 1861. Texas was officially readmitted to the Union on March 30, 1870.

Here’s the constitutional conundrum: Texas never officially seceded from the Union in 1861, but was officially readmitted to the Union in 1870.

Writing for the majority, Chief Justice Chase makes clear that his primary concern is not the constitutionality of secession per se, but political necessity: He wrote that “. . . the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. . .  If this were otherwise, the State must have become foreign, and her citizens foreigners.  The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation” [emphasis added].

This explains why he concedes that “[i]t is needless to discuss, at length, the question whether the right of a State to withdraw from the Union for any cause, regarded by herself as sufficient, is consistent with the Constitution of the United States” and then concludes that when “Texas became one of the United States, she entered into an indissoluble relation.”

Had Chase put aside political necessity, he would have had several difficult questions to address.

First, is the Constitution a compact among the people of the United States, or the States? More specifically, are the States sovereign? The Declaration of Independence acknowledges when the colonies seceded from the “State of Great Britain” they became “Free and Independent States” and have “full power . . . to do all other Acts and Things which Independent States may of right do.” The States, in effect, became sovereign. This fact is acknowledged in the first U.S. Constitution, the Articles of Confederation: “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. (Article II) If the States became sovereign as a consequence of secession from the State of Great Britain, when did they relinquish their sovereignty?

As St. George Tucker points out in his 1803 Blackstone’s Commentaries With Notes of Reference to the Constitution, sovereignty cannot be relinquished through implication. For a State to surrender its sovereignty the surrender must be explicit, e.g., by treaty, or conquest. The argument could be made that the States retained their sovereignty and secession is a reserved power. Nothing in the U.S. Constitution could be fairly interpreted, including the supremacy clause (Article VI), executive powers (Article II), the ratification process (Article VII), or the guarantee and domestic violence clauses (Article IV, section 4) to militarily suppress the secession of a State.

Second, secession was part and parcel of American political culture. In his book A View of the Constitution of the United States (1829) William Rawle wrote that the “states, then, may wholly withdraw from the Union, but while they continue, they must retain the character of representative republics.” (chapter XXXII) It is notable that this was the assigned text at West Point for several years.

Moreover, secession was used as a political tool during the War of 1812 by New England States, during the enforcement of the fugitive slave laws in Midwestern States, and favored by Abolitionists.

In his dissenting opinion, Justice Grier stated the obvious:

“The ordinance of secession was adopted by the convention on the 18th of February, 1861; submitted to a vote of the people, and ratified by an overwhelming majority.  I admit that this was a very ill-advised measure.  Still it was the sovereign act of a sovereign State, and the verdict on the trial of this question, “by battle,” as to her right to secede, has been against her.  But that verdict did not settle any question not involved in the case.  It did not settle the question of her right to plead insanity and set aside all her contracts, made during the pending of the trial, with her own citizens, for food, clothing, or medicines.  The same “organized political body,” exercising the sovereign power of the State, which required the endorsement of these bonds by the governor, also passed the laws authorizing the disposal of them without such endorsement. She cannot, like the chameleon, assume the color of the object to which she adheres, and ask this court to involve itself in the contradictory positions, that she is a State in the Union and was never out of it, and yet not a State at all for four years, during which she acted and claims to be “an organized political body,” exercising all the powers and functions of an independent sovereign State.  Whether a State de facto or de jure, she is estopped from denying her identity in disputes with her own citizens.  If they have not fulfilled their contract, she can have her legal remedy for the breach of it in her own courts. . . however astute may be the argument introduced to defend this decree, I can only say that neither my reason nor my conscience can give assent to it.”

Texas v. White is controlling case law which denies the constitutional right of a State to secede from the Union. Ipso Facto, should a State or States desire to secede from the Union, to that extent the Union is coercively bound together, and thereby not necessarily deriving its powers from the consent of the governed and anathema to the “consent of the governed” principle of the Declaration of Independence.

Texas v. White (1869) Supreme Court decision:
https://supreme.justia.com/cases/federal/us/74/700/case.html

Dr. Marshall DeRosa is a professor of Political Science at Florida Atlantic University, Boca Raton, FL.

3 replies
  1. Barb Zack
    Barb Zack says:

    I read this several times and will probably read several more to fully grasp the decision of the Court and it’s implications. Many today say the States have a right to secede from the Union. I was thinking, in a way, the Federal Government is like the UN or the EU, and if states (or countries) secede to go back to their own sovereignty, what happens to the UN, the EU or the United States? They become weaker, the states become stronger, and eventual anarchy looms.

    The preamble to the Constitution starts with “we the People”, not we the states. Still, it’s obvious throughout the Constitution, the States were meant to play a large role in governing the people of the United States. See Amendment X. I’ll be interested to continue reading cases like this one.

    Reply
  2. Marshall DeRosa
    Marshall DeRosa says:

    An earlier draft of the Preamble listed the States by name, but States by name were subsequently edited out because of the uncertainty about which States would ratify. Rhode Island did not ratify until May 1790. Rather than focusing on “looming anarchy” focus on looming tyranny. Secession was designed to protect the States from a national government considered to be oppressive, i.e., not based upon the consent of the people within the State.

    Reply
  3. Ralph Howarth
    Ralph Howarth says:

    The case fails to observe one latent succession clause found in Article V of the federal constitution. Article V has an operative word “provided” that no state may be deprived of equal suffrage without its consent. If Article V is not observed in amending the constitution then a constitutional convention is triggered. As few will ever admit, a constitutional convention is an act of succession of a collection of states breaking free from an old league of states.

    Reply

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