I was recently hired to review the Supreme Court opinion in the case of Texas v. White, 74 U.S. 700 (1869). The opinion in that matter was written by Chief Justice Salmon P. Chase, who had served in Lincoln's cabinet during the Civil War prior to his appointment as chief justice. In the recent talk of secession, this case is often thrown out as having settled the matter legally, just as the Civil War settled the matter militarily.

This memorandum of course does not address the wisdom of secession and does not advocate secession. It is devoted solely to analysis of whether Texas v. White is, as is suggested, binding precedent as to the future legality of a state attempting to secede.

1. Secession was not the ultimate issue in Texas v. White.

Texas v. White is often cited as a case which definitively and directly ruled on Texas' right to secede. That is not the case. Texas v. White was a case about government bonds. It's all a little boring but it's important to understand just how far removed the decision is from what it is often presented to be.

In 1851, the Federal Government issued bonds to the State of Texas as payment for the resolution of a boundary dispute. The bonds were payable to the State of Texas, or bearer, meaning that Texas could redeem them itself, or sell them on the secondary market. The Texas legislature then passed an act which indicated that the bonds could not be sold unless endorsed by the Governor of Texas. Texas redeemed most of the bonds prior to the Civil War, but it still had a few left when the war broke out. These were not yet signed by the governor.

When Texas putatively seceded, its governor, G. W. Paschal, remained loyal to the Union and was replaced by a governor loyal to the Confederacy.

Texas traded some of the remaining bonds to Mr. White and others in exchange for supplies. These bonds were not signed by G.W. Paschal. Paschal warned the Union that Texas would try to use the bonds in support of the war effort. The bonds would be easily identified because they would not be signed by Paschal or any prior Governor of Texas, if they were signed at all. The U.S. Treasury made it well known that it would not redeem such bonds and so no attempt was made to redeem them.

By 1865, Texas and the Confederacy were defeated. The U.S. President appointed a new governor of Texas and directed the formation of a reconstruction government. In 1866 the State Convention passed an ordinance directing the governor to repossess the bonds. The State of Texas (now loyal to the Union) brought suit against Mr. White and the other bond holders, arguing that the bonds were never properly endorsed and so still belonged to Texas.

The bondholders argued, among other things, that Texas had no right to sue in the Supreme Court because: "Texas by her rebellious courses had so far changed her status, as one of the United States, as to be disqualified from suing in this court."

This was not a contest of the merits of secession. This was not a case of a pro-secession state arguing in favor of secession. The reconstruction government of Texas was arguing in favor of Texas' standing in federal court and therefore Texas was arguing against the secession argument raised by the bondholders.

2. The opinion in Texas v. White is limited to the set of facts set forth in that case.

The question in Texas v. White was not whether a state can ever cease to be a member of the Union. The Court defines the question as: "Did Texas, in consequence of these acts, cease to be a State? Or, if not, did the State cease to be a member of the Union?"

What then are "these acts," which the Supreme Court found insufficient for secession? The Court describes them in great detail:

On the 1st of February a convention, called without authority, but subsequently sanctioned by the legislature regularly elected, adopted an ordinance to dissolve the union between the State of Texas and the other States under the Constitution of the United States, whereby Texas was declared to be 'a separate and sovereign State,' and 'her people and citizens' to be 'absolved from all allegiance to the United States, or the government thereof.'

It was ordered by a vote of the convention and by an act of the legislature that this ordinance should be submitted to the people, for approval or disapproval, on the 23d of February, 1861.

Without awaiting, however, the decision thus invoked, the convention, on the 4th of February, adopted a resolution designating seven delegates to represent the State in the convention of seceding States at Montgomery, 'in order', as the resolution declared, 'that the wishes and interests of the people of Texas may be consulted in reference to the constitution and provisional government that may be established by said convention.'

Before the passage of this resolution the convention had appointed a committee of public safety, and adopted an ordinance giving authority to that committee to take measures for obtaining possession of the property of the United States in Texas, and for removing the National troops from her limits. The members of the committee, and all officers and agents appointed or employed by it, were sworn to secrecy and to allegiance to the State. Commissioners were at once appointed, with instructions to repair to the headquarters of General Twiggs, then representing the United States in command of the department, and to make the demands necessary for the accomplishment of the purposes of the committee. A military force was organized in support of these demands, and an arrangement was effected with the commanding general, by which the United States troops were engaged to leave the State, and the forts and all the public property, not necessary to the removal of the troops, were surrendered to the commissioners.

These transactions took place between the 2d and the 18th of February, and it was under these circumstances that the vote upon the ratification or rejection of the ordinance of secession was taken on the 23d of February. It was ratified by a majority of the voters of the State.

The convention, which had adjourned before the vote was taken, reassembled on the 2d of March, and instructed the delegates already sent to the Congress of the seceding States, to apply for admission into the confederation, and to give the adhesion of Texas to its provisional constitution.

It proceeded, also, to make the changes in the State constitution which this adhesion made necessary. The words 'United States,' were stricken out wherever they occurred, and the words 'Confederate States' substituted; and the members of the legislature, and all officers of the State, were required by the new constitution to take an oath of fidelity to the constitution and laws of the new confederacy.

Before, indeed, these changes in the constitution had been completed, the officers of the State had been required to appear before the committee and take an oath of allegiance to the Confederate States.

The governor and secretary of state, refusing to comply, were summarily ejected from office.

By laying the facts out in such detail, Chase presents myriad opportunities for future jurists and states to distinguish between future secession attempts and that of Texas in 1861. Even if taken as binding precedent, Texas v. White stands only for the proposition that somewhere in the above described events, there was some procedural flaw making Texas' secession invalid. For instance, Chase could be read as saying that the process of secession taken by Texas failed because it was initiated by "a convention, called without authority" and because it did not receive the ratification of the elected governor and secretary of state.

Chase makes no statement as to the validity of secession undertaken by a majority vote of a state legislature and enacted by its executive.

3. Texas v. White contains little by way of citation to authority.

Even within the narrow ground covered by the opinion, the opinion is not well supported.

Admittedly, no legal tradition supplies a common law governing secession -- except perhaps that the topic must be off limits with punishments ranging from drawing and quartering in medieval times, to rolled eyes at a present day cocktail party. With such a dearth of case law, Chase was left to do what he could with moral and philosophical arguments.

He begins by conceding that: "The Republic of Texas was admitted into the Union, as a State, on the 27th of December, 1845. By this act the new State, and the people of the new State, were invested with all the rights, and became subject to all the responsibilities and duties of the original States under the Constitution."

Note the passive voice: "Texas was admitted . . . ," and "the people . . . were invested . . . ." A skilled politician and jurist like Chase doesn't use the passive voice accidentally. Had he named Texas as the entity doing the admitting and investing, he would have to acknowledge some of the contradictions I address below. More likely, in Chase's view it was the Union doing the admitting and investing, but to treat Texas as having played a passive role in its own admission to the Union would have been to openly distort recent history.

He continues:

From the date of admission, until 1861, the State was represented in the Congress of the United States by her senators and representatives, and her relations as a member of the Union remained unimpaired. In that year, acting upon the theory that the rights of a State under the Constitution might be renounced, and her obligations thrown off at pleasure, Texas undertook to sever the bond thus formed, and to break up her constitutional relations with the United States.

Strangely, after going to the trouble of laying out Texas' procedure for its attempt at secession, Chase, in his argument, practically ignores them. If, as is proffered, Texas v. White holds that no process could ever affect secession, then Chase's reasoning is more implicit than explicit. It is implied that the politicians representing Texas in 1845 were able to forever bind all Texans to the Union, yet the politicians representing Texas 16 years later had no power to unbind them. Did one of these governments have the consent of the governed and not the other? How is it possible for one generation of Texans to grant to their government the authority over every following generation until the end of time? If we assume that the holding in Texas v. White is absolute, and that Chase's criticisms went beyond procedural flaws, then these questions must be answered. There were certainly not answered by Chase.

Chase's argument is particularly troubling in light of his discussions regarding just what a state is. Essentially, Chase seems to say that the State, in the sense of the people, or the nation, lives on perpetually, while the State, in the sense of the government, can come and go. This certainly comports with history. However, as applied to the actual history of Texas, his logic would hold that the ephemeral state (government) can perpetually bind the eternal state (people).

4. Chase's historical arguments do a poor job of supporting his opinion.

Chase notes: "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. It was confirmed and strengthened by the necessities of war . . . ." This of course would fully apply to the relations between Great Britain and its colonies as well as it would describe the Union of the States. Chief Justice Chase makes no attempt to differentiate between the secession of Texas and the Independence of the Thirteen Colonies.

Chase concludes, "The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States." Chase makes no explanation as to what would have made the Magna Carta (or any subsequent British constitution) look more destructible.

5. Chase's reference to the Articles of Confederation is confusing.

Chase next places a clumsy weld between the old Articles of Confederation and the United State Constitution. He notes that the Union "received definite form, and character, and sanction from the Articles of Confederation. By these the Union was solemnly declared to 'be perpetual.'" He then attempts to tie the Articles to the Constitution but in so doing contradicts himself: "when these Articles were found to be inadequate . . . the Constitution was ordained 'to form a more perfect Union.'"

Chase is implying that somehow a portion of the Articles survived the ratification of the Constitution. Yet this introduces another contradiction: If the Articles were "perpetual" then how could they have been replaced by the Constitution? Are the Articles still in force? Are they in full force, or did only two words -- "be perpetual" -- survive?

These questions take on a new dimension when we consider that Texas was never a party to the Articles; by the time Texas joined the Union the Articles had been replaced by the Constitution. If Texas was somehow bound by the 'perpetual' Articles of Confederation, could it then secede from the Union formed by the Constitution but remain bound to the other states by the Articles of Confederation?

Half of Chase's argument corresponds to history. The Articles were found to be inadequate. However there is no basis to assume, as Chase has done, that any provision of the Articles was judged adequate and somehow incorporated into the Constitution. The Constitution is not simply an addendum to the Articles; both in a broad sense and in particulars it directly contradicts the Articles. If "the Constitution was ordained for form a" union more perfect than that union formed by the Articles of Confederation, this would suggest that no provision of the Articles would survive. At the very least, our starting assumption should be that any provision in the Articles, which was not included in the "more perfect" Constitution, was deliberately abandoned.

In summary, Texas v. White, even if given the utmost respect, and considered binding precedent, does not stand for the proposition that no state may ever break its bonds with the Federal Government of the United States. At the same time, if it is considered the final word on the Federal Government's right to prohibit a state from seceding, then that right is far from established.