Didn’t the Supreme Court declare secession unconstitutional?

The entire legal argument for the unconstitutionality of States leaving the Union rests on the Supreme Court’s decision in the 1869 case of Texas v. White. However, when it comes to Texas v. White, more and more academics are adopting the stance of historian Dr. Brion McClanahan. When asked that very question at an academic conference in Florida, his response was an indignant, “So what?”

Dr. McClanahan’s attitude toward Texas v. White is not based on a denial of facts. In fact, contrary to the concrete pronouncements by Texit detractors, the decision in Texas v. White has been debated and debunked extensively starting from the moment Chief Justice Salmon P. Chase issued the majority opinion.

The dissenting opinion, issued by Justice Robert C. Grier, highlighted many of the deficiencies of the Supreme Court’s ruling, stating that he disagreed “on all points raised and decided.” The assertions made by Chase were so offensive to his contemporaries that Union and Confederate sympathizers, both fresh from the battlefields and still harboring deep divisions, were united in their contempt for his ruling.

Bristling at the usurpation by the judiciary of the power to determine political questions, Lyman Trumbull, a United States senator from Illinois, introduced legislation that, in part, stated, “Under the Constitution, the judicial power of the United States does not embrace political power, or give to judicial tribunals any authority to question the political departments of the Government on political questions.”

There is no doubt that Chief Justice Chase, an appointee of Abraham Lincoln, used the opportunity presented by Texas v. White to stamp a retroactive “seal of approval” on the federal government’s policies and actions during the Civil War. To do so, Chase had to rewrite history and virtually all established law on the subject.

To reinforce his belief that the United States was a “perpetual union,” he had to assert the ludicrous argument that the United States Constitution was merely an amending document to the previous Articles of Confederation, citing the Preamble to the Constitution. He then had to ignore that it only took 9 States of the original 13 to ratify the Constitution of 1787 and that, had less than 13 States ratified, it would have destroyed the “perpetual union” allegedly created by the Articles of Confederation.

To reinforce his assertion that the United States was an “indestructible Union, composed of indestructible States,” Chase had to ignore the existence of West Virginia, and the agreement with the Republic of Texas upon its admission, that it could divide into 4 additional States and that those additional States would be guaranteed admission into the Union if they so chose.

To reinforce his assertion that States, upon entering the Union, gave up all rights of sovereignty and became incorporated in a single, monolithic superstate, Chase had to ignore every reference to the States as individual political entities in the Declaration of Independence, the aforementioned Articles of Confederation, the Northwest Ordinance, the United States Constitution, and all intent of the framers, clearly expressed in the period.

In his zeal to confirm the supremacy of the Union, Chase ascribed qualities to it that are usually reserved for deities. In effect, he equated the Union to God and established a quasi-religious orthodoxy that requires adherence to a doctrine that elevates the federal government to godhood, its three branches to the Holy Trinity, and the judiciary as its holy priesthood.

There is no doubt that, had the States been exposed to Chase’s logic during deliberations over the ratification of the Constitution, they would have soundly rejected it and likely drafted a new Declaration of Independence.

The Supreme Court was not and never will be perfect. Some of the most heinous, morally reprehensible, logically flawed decisions have emanated from the Supreme Court. To imbue it with infallibility is to say that, when it upheld slave catching or when it upheld racial segregation, it was right. Yet decisions by the Court in both of those instances have been overturned.

Even Supreme Court Justice Oliver Wendell Holmes, Jr., in the 1904 case of Northern Securities Co. v. United States, recognized that the Court could be caught up in the politics and passions of the day and render bad decisions.

“Great cases like hard cases make bad law. For great cases are called great, not by reason of their importance… but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.”

With all its obvious flaws, some academics continue to point to Texas v. White as the “silver bullet” that handles all questions related to States separating from the Union. However, others tend to glide over it so as not to have to acknowledge its most significant problem.

Embracing Texas v. White requires one to believe the last 150 years never happened. Since 1869, the world kept spinning. Generations have come and gone, and the Supreme Court has continued to issue rulings that chip away at the foundations of Texas v. White. As the entirety of Chase’s determination is predicated on the claim that “perpetual union” is the “more perfect union” spoken of in the Preamble of the Constitution, the single ruling by the Court in the 1905 case of Jacobson v. Massachusetts, where it was determined that the federal government can gain no powers based on the Preamble, could utterly destroy Texas v. White.

The federal government’s position on self-determination has evolved to the point of signing international agreements, covenants, and treaties pledging to respect the right of self-determination. The same chorus of voices who declare that Texas v. White is the “end all, be all” of decisions on the matter of self-determination of the States are the same voices who declare that subsequent rulings by the Supreme Court obligate the federal government and the States to give treaty obligations, such as those dealing with self-determination, the same weight as constitutional law and argue for its application as such.

Ultimately, though, any question of self-determination is political in nature. It is not, and never will be, a judicial question.

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