Justice Scalia to Preside in Mock Trial on Texas Secession

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.