Justice Scalia to Preside in Mock Trial on Texas Secession
By Melancton Smith • Friday August 19, 2011 6:06 AM PDT • 11 Comments
The WSJ blog notes that Justice Antonin Scalia will preside over a retrial of Texas v. White. This event will be sponsored by the Supreme Court’s Historical Society. This case centered on whether bond sales by the State of Texas, while part of the Confederate States of America, were valid. The Reconstruction government of Texas argued that these sales were invalid and that the holders of the bonds should turn them over to state authorities. The bond holders argued that simply because the state now had a new government, it could not undo all acts of the people’s representatives in a prior government.
The Court held that the sales of the bonds were invalid because the sales were in furtherance of a rebellion against the United States. In considering Texas’ place in the Union and the right of secession, the Court declared that the Union was perpetual and that no state has a right to dissolve it by a unilateral action.
What will be interesting in the mock trial is how Justice Scalia treats the fact that Texas was an independent republic until it joined the Union in 1845. Some, including Rick Perry, argue that this makes Texas different from the original 13 states and other states added thereafter. What they fail to realize is that all 13 states were independent republics before ratifying the Constitution of 1787.
Under the Treaty of Paris (1783), George III recognized that the individual states were now “free sovereign independent states, and that he treats with them as such.” The states of North Carolina and Rhode Island retained their complete independence and sovereignty until after the other 11 states ratified the Constitution and the federal government began operations. Had these two states not ratified, they would to this day be independent nations such as Great Britain and France are.
We’ll see if Justice Scalia buys into the false history that only Texas was once an independent republic.
Tags: Constitution, Law, The State 
Ahem. My home state of Vermont was an independent Republic and never under the effective control of any European power. Vermont had its own Constitution, including the first line prohibiting slavery:
http://en.wikipedia.org/wiki/Constitution_of_Vermont_%28Vermont_Republic%29
Interestingly,recent surveys found that secessionist sentiment was strongest in Texas and – you got it – northern New England!
Jonathan Bean | Aug 19, 2011 | Reply
If they could secede, I would move. Texas here I come.
bill | Aug 19, 2011 | Reply
I think it could be a wonderful lead up to a whole bunch of states nullifying un-Constitutional laws of the federal government.
PJ | Aug 19, 2011 | Reply
Secession is as American as it gets. There are rights and procedures in the Constitution that permit any state to do so. If Texas thinks it’ll do better separate of the mother country, then it is well within it’s rights to become a republic of it’s own.
Kale R. | Aug 19, 2011 | Reply
This ought to be an interesting exercise. Back in the ’70s (or maybe it was the ’60s) there was a show called The Advocates where they would argue this kind of thing in a courtroom-like setting.
Naturally the show didn’t last.
Albert Taylor Bledsoe’s book “Is Davis A Traitor?”
, later printed under the title “The War Between The States” addresses the secession question from just about every angle.
It’s interesting that the Articles of Confederation use the term “Articles of Confederation and perpetual union”, whereas the constitution does not.
Chris Sullivan | Aug 20, 2011 | Reply
Wow, what a thought...the USA without Texas. Now you are talking. That sure would eliminate a sizable portion of right-wing religious nutjobs; not to mention no George W and no Rick Perry. It just sounds too good to be true. Come on Texas, put a gallop in your step.
Harry | Aug 22, 2011 | Reply
Me too.
Lil save the country | Aug 23, 2011 | Reply
Make room for me.
Lil save the country | Aug 23, 2011 | Reply
As long as Texas doesn’t get any rotten representatives who misrepresent themselves and their governing offices become corrupt and self serving and forget who they represent, then I say 3 cheers for Texas, go it on your own. The only problem is that there would be so many people from the other states wanting to get away from the corruption in this government, Texas might not be able to handle all those wanting to live there. It’s an interesting idea though.
Lil save the country | Aug 23, 2011 | Reply
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” – 10th Amendment to the U.S. Constitution. Nothing in the Constitution declares that a state cannot leave the Union. The Texas argument is irrelevant; ALL states have the right of secession. Just because the Texas v White outcome was in clear contrast to the rule of law as written in the Constitution does not change that. Heck, when one marries in this country, the standard oath is “…’til death do us part”, yet the Supreme Court has not denied that a couple has the right to divorce, yet it erroneously and maliciously declared that the southern states could not secede. This of course was purely political since it would have taken courage for the Supreme Court to declare that Lincoln’s war was unconstitutional (even though it was), and courage is a rare thing among judges.
But of what use is all of this Constitution discussion? As I have said for years, the trouble with the Constitution, and what rendered it useless before the ink was even dry, is that it has no teeth. Unless you are an elected or appointed official, or judge, you have never sworn to uphold any law, yet if you break the law you go to jail. Elected/appointed officials and judges swear to uphold the Constitution – the supreme law of the land – but when they break that law, they not only are not thrown in jail, they get campaign contributions and reelected to office. G.W. Bush was right, unless and until we are willing to stand up to a government run amok (for centuries), the Constitution is “nothing but a G*# D@mned piece of paper!”
joe4liberty | Aug 25, 2011 | Reply
When will Scalia appear on Oprah? And Morning Joe? Talk about lowering the bar. Shouldn’t the Court be at least a little dignified? First the dumb lump Thomas, now this? I think I read that Alito is available for children’s parties.
savannah43 | Aug 27, 2011 | Reply