Texas v. White a Roadblock To Secession; But It Might Also Provide an Escape Route

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In the 1868
case of Texas v. White, 74 U.S. (7 Wall.) 700, a case dealing
with the title to some U.S. bonds, the Supreme Court ruled that
Texas', and hence the South's, attempted secession in 1861 was unconstitutional.
But the opinion also contained some wording that might give secessionists
a way around White.

It's unfortunate
that the Court used White as the vehicle to address the constitutionality
of secession. The Court reached the constitutionality issue only
because of a jurisdictional question; and it was virtually impossible
for the Court not to hold secession unconstitutional a mere three
years after the end of the War Between the States. A finding of
constitutionality would have rendered unnecessary all the death
and misery of that war. Of course, it was unnecessary. But the point
is that the Court was under tremendous pressure to uphold the result
of the war as if constitutional issues are settled on the battlefield.
(For an excellent overview of why secession was constitutional,
Lincoln's arguments against it, and various other aspects of the
secession issue, see u201CWas
the Union Army's Invasion of the Confederate States a Lawful Act?
u201D
by James Ostrowski.)

No, this
was certainly not the optimum test, or a fair test, for a decision
on such a vital constitutional matter. Nevertheless, the case, wrongly
decided as it probably was, is out there and serves as a significant
hurdle for secessionists if we hope to secede lawfully. If we look
at secession as a matter of political will and are not concerned
with secession's constitutionality, White is not particularly
important. But let's assume for now that the goal is lawful, constitutional
secession.

So what is
the potentially helpful language the Court used? After noting that
it was u201Cneedless to discuss at length 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[,]u201D
the Court then determined that the Union was intended to be perpetual
and then stated that after Texas entered into u201Can indissoluble relationu201D
with the Union: u201CThere was no place for reconsideration, or revocation,
except through revolution or through the consent of the States.u201D
(Emphasis added.)

Consent
of the states. What does that mean? We know it doesn't mean a constitutional
amendment. That is a term of art, and there is no logical explanation
as to why learned justices would use the phrase u201Cconsent of the
statesu201D if they meant constitutional amendment. Does this phrase
tell secessionists that there is another way to secede other than
constitutional amendment? Does it mean the consent of a majority
of states?

Opponents of
secession will no doubt say that the phrase is mere dicta and has
no controlling effect. Dicta are, basically, a comment that isn't
essential to the case's outcome. (The full term is obiter dicta:
dead words. Dictum is singular.) Dicta aren't part of the holding.
But lawyers and judges argue all the time about whether a phrase
is dicta or holding. Richard Posner, judge and legal scholar, once
noted that the distinction between the two concepts u201Cis fuzzy not
only at the level of application but also at the conceptual level.u201D
Posner, u201CThe Federal Courts: Crisis and Reformu201D (1985). Some have
said calling something dicta merely means: I don't want to follow
this decision. So dismissing the phrase as dicta, while a predictable
tactic, isn't necessarily fatal to the use of the phrase by secessionists.

Complicating
matters more there's a concept called judicial dicta. These are
dicta that deal with an issue that was briefed and argued and was
directly involved in the decision but isn't essential to the decision
in the case. Judicial dicta, also difficult to define, are given
more weight than dicta.

The u201Cconsent
of the statesu201D phrase is, at worst, judicial dicta, as the issue
of constitutionality was briefed and argued. The Court's comment
must be given some weight. It has some meaning. And it helps secessionists.
Constitutional amendment requires 38 states. And getting the Court
to overturn White is highly unlikely. So this consent concept
provides a third, possibly somewhat easier, option than either amendment
or overturning of the case.

Michael C.
Dorf, a law professor at Columbia and a constitutional scholar,
is one of the few commentators who has addressed this language in
White. In an article about secession, Dorf, after saying
that White held secession unconstitutional, looked to the
u201Cconsent of the statesu201D language and said, essentially, that we
don't know what it means but it may provide an argument for states
that want to secede. The article, interestingly, was addressed to
a question about whether blue states could secede after the 2004
election. The title of the article, in fact, was u201CDoes the Constitution
Permit the Blue States to Secede? With Permission, Perhaps; Unilaterally,
Nou201D FindLaw (Wednesday Nov. 24, 2004).

If the
White language does allow secession on the approval of the
states (however that approval is given), how likely is it that secessionists
could get 26 states? Well, the original 11 Confederate states would
be a good start. Vermont
has one of the most active secessionists movements
in the U.S.,
so it might join in. North and South Dakota, Montana and Idaho are
possibilities. Oklahoma is a likely candidate. Missouri and Kentucky
are possibilities. That's a total of 19. Approval by these states
won't happen immediately, but if the federal government continues
to trample on the rights of the people who thinks it won't? And
if the secessionist movement can effectively educate the public,
especially in states that might agree to secede, maybe getting 26
states isn't out of the question in the foreseeable future. And
it's always possible that a few blue states will approve of secession
just to get rid of us.

February
4, 2010

Brian Stanley
[send him mail] is vice
president and general counsel of The Hefner Company, Inc., an oil
and gas and investment company in Oklahoma City, OK. He also maintains
a private law practice.

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