Secession Ruled Illegal by a Long-Ago Supreme Court

by

John J. Dunphy

(This is a revised version of a column originally published in the 8/31/13 edition of The Telegraph of Alton, IL)

I know more about the law than Antonin Scalia, who sits on the United States Supreme Court as an associate justice. My liberal friends will read that statement and say, “Well, who doesn’t?” Since his appointment to the court in 1986, Scalia’s voting record and public statements have secured his reputation as an ultra-conservative judicial originalist and ardent foe of the living constitution theory, which liberals such as myself favor. Despite our ideological differences, however, liberals and conservatives should be able to agree that Scalia displayed a shocking judicial illiteracy when responding to a question on the subject of secession.

A screenwriter who as penning a farce about Maine seceding from the United States sent letters to all our Supreme Court justices in 2006 to inquire about the legal issues regarding secession. In his reply, Scalia wrote, “If there was any constitutional issue resolved by the Civil War, it was that there is no right to secede.” While the second half of Scalia’s statement is certainly true, I was amazed that he cited the Union’s victory in the Civil War as the event that settled once and for all the issue of secession.

To be sure, the “government” of Jefferson Davis and his fellow traitors collapsed when Rebel armies were soundly defeated by Union forces. But secession was indeed a “constitutional issue,” as Scalia wrote in his letter, and such matters aren’t settled on battlefields. The Union won the Civil War primarily because the Northern states had more industry and a greater population than the South, two factors that have nothing to do wit constitutional law. Secession was forever discredited not by the Union victory in 1865, as Scalia claimed, but four years later when the U.S. Supreme Court issued its historic ruling in the case of Texas v. White.

The state of Texas received $10 million in U.S. bonds in 1850. When Texas proclaimed its secession from the Union in 1861, its government still possessed some of these bonds. The financially-strapped Texas Confederates decided to sell the bonds to help finance their war with the Union. The brokerage firm of George White ad John Chiles purchased 135 of these bonds, which it in turn resold to investors. After the South’s defeat, the Union-supported Reconstruction government of Texas contended that the Rebel government had illegally sold these bonds and sued White and Chiles for their return. White insisted that the bonds couldn’t be located for return. He protested that his firm should not be required to reimburse the Reconstruction government any money that had been earned by their sale.

Texas field suit against White, Chiles and several others in the U.S. Supreme Court, since Article III, Section 2 of the Constitution gives original jurisdiction to our highest court in cases involving states. Attorneys for Texas argued that the Lone Star State’s Confederate government was illegitimate, which meant that the sale of those U.S. bonds to the brokerage firm had been invalid. The defendants’ attorneys insisted that the sale of the bonds by a state government in open rebellion against the United States of America was not unconstitutional.

Salmon Chase, Chief Justice of the Supreme Court, had been vitally involved in the struggle against slavery. A leader of the Liberty party in Ohio, he later helped to form the Free Soil party and was elected to the U.S. Senate in 1849 on that party’s ticket. He played a significant role in founding the Republican party and became Ohio’s first GOP governor in 1855. Chase was elected to the U.S. Senate in 1860 but resigned shortly after taking his set in order to accept appointment as Lincoln’s Secretary of the Treasury. Lincoln in 1864 appointed him as chief justice. It was Chase who delivered the high court’s ruling that secession was illegal, which meant the Rebel Texas government’s sale of the bonds had also been illegal.

Chase noted that our nation’s Articles of Confederation had declared the Union to be “perpetual” and that the U.S. Constitution had been framed to “form a more perfect Union.” He posed the question, “What can be indissoluble if a perpetual union, made more perfect, is not?” When Texas entered the Union, Chase observed, “she entered into an indissoluble relation” and “perpetual union.” The Texas ordinance of secession and all the acts of that state’s Rebel government…..”were absolutely null,” Chase wrote. Texas never ceased to be a state in the Union “nor her citizens to be citizens of the Union.” Chase also validated the Union armies’ invasion of the South during the Civil War by affirming that the federal government has the legal right to employ military power to suppress insurrections.

To this day, however, neo-Confederates and other radicals, including Ron Paul and his supporters, insist that states have the right to secede from the Union. These extremists should acquaint themselves with Texas v. White. It wouldn’t hurt Antonin Scalia to look into Texas v. White as well. I should think that his job description requires him to be familiar with such landmark rulings by the Supreme Court.

John J. Dunphy is the author of a number of works, including Abolitionism and the Civil War in Southwestern Illinois and Unsung Heroes of the Dachau Trials: The Investigative Work of the U.S. Army 7708 War Crimes Group, 1945–1947.