In other words, not only did the Court expressly indicate that it was not ruling on the constitutionality of the Reconstruction acts, but 8 of the 11 confederate states had already been readmitted by December 1868, when Texas v. White was decided. So Congress could not possibly have relied on Chase’s dicta in Texas v. White in 1867 .
Moreover, I’m not sure that your quoted material supports the rebels-don’t-get-to-vote theory,
As I noted earlier, the Court found all preconditions to suit were met. Therefore, this condition was satisfied in 1868, even though Texas was not readmitted until 1870. So the Court evidently found that in 1867, when the case was filed in the Supreme Court, Texas had a government competent to represent the State in its relations with the National Government.
Again, the Court found that a government in Texas in constitutional relations with the Union was necessary for suit. And the Court allowed the suit to go forward.
Article 2 makes clear that in the eyes of the international community, the United States is a sovereign–individual states are not.
Similarly, there is no agreement on the issue of whether the states and the Union should be considered to have come into being in that order, or whether they should be seen as being created concurrently.
In his book, Original Meanings historian Jack Rakove discusses the constitutional chicken or egg question: “Which came first, the Union or the states?” Rakove points out that while the conundrum was not central to the debate, it was discussed by the framers, “at least once, immediately after the rejection of the New Jersey Plan.” (p. 163). Luther Martin argued that the separation from Britain had “‘placed the 13 States in a state of nature towards each other,’” and that only then had these ‘separate sovereignties’ formed a federal government."* Id. * James Wilson, disagreed, arguing that “the colonies became states only by jointly declaring independence.” Id. Rakove suggests that “Wilson was the better historian,” because “his understanding of the concurrent origins of the Union and the states rendered the developments of the mid-1770s far more accurately than Martin’s effort to reduce these events to a neat, two-step process.” *Id. *
But all of this begs the question. The question is whether once a state ratifies the Constitution, it can then back out and regain its previous statutus. In the case of those states that were recognized internationally as states before they joined the union, the answer is even more strongly a “no.”
(Art. 54).
*
Texas v. White* is an authoritative statement by a body having the responsibility for interpretation of the document, and it says that secession is not in conformity with the Constitution. We aren’t talking about a situation where all parties have consented, so that provision does not apply either.
Neither do I, but it doesn’t matter if you or I or anyone else on this board believe that Texas v. White supports the “states in rebellion are not allowed to vote” doctrine. The point is that Congress chose to interpret it this way to justify their determination that in the original vote on the XIVth Amendment, the Southern states that voted against it were not allowed to vote (a point quickly made moot when the reconstructionist governments in the South changed the vote to ratification). Like I’ve said before, a lot of what the Feds did during this time strained the interpretation of many laws in ways that we would not today.
Someone else in this thread pointed out that there are two types of states: those that were independent nations before joining the US (the 13 Colonies, the Lone Star Republic, the Bear Flag Republic, and the Kingdom of Hawaii). The others were territories that the US carved out of federal land that organized themselves and petitioned for statehood. I think the Constitution as originally written conceived of states as relatively independent (sovereign) entities that willingly give up some individual rights to a central authority for greater power internationally - not unlike a union in negotiating with management.
The actuality is that today states are little more than political subdivision with very limited sovereignty due to the Feds continually finding a way to overrule state decisions (interstate commerce clause, funding decisions, etc.)
No, Congress didn’t interpret it that way. Congress proposed the Fourteenth Amendment in June 1866. Within a year, 21 of 25 Northern states had ratified the amendment, but only one of the 11 former Confederate states (Tennessee).
At that point, Congress could have said, “Twenty-two of 26 states in the Union have ratified the amendment (Tennessee was readmitted upon ratification), and that is more than 3/4, so the amendment is part of the Constitution.” They didn’t do that. Rather, they said, we have to get legislatures elected in the South which will ratify, and the way to do that is to stop barring colored persons (as African Americans were called at the time) from voting."
This was accomplished via the Reconstruction Acts of March 1867. SCOTUS had several opportunities to declare these acts unconstitutional in 1867 and 1868, but declined to do so. By the time Texas v. White was announced in May 1869, eight of the 11 former Confederate states had completed reconstruction and been readmitted, and the Fourteenth Amendment had secured ratification by the necessary 3/4 of all 37 states (Nebraska having been admitted in the meantime). It was no longer a live issue.
What in the world are you talking about?! Congress did exactly that and one of the articles of impeachment against Andrew Johnson was that he “denied the validity of the laws of the 39th Congress” by claiming that the XIVth Amendment did not in fact pass because it only had 22/36 votes. In fact, the House managers felt that this was such an assured conviction that it was the first article to be voted on (not his violation of the Tenure of Office Act) and it was this charge that he was acquitted of by one vote (he was acquitted of three of the eleven charges before adjournment, two by one vote and one by two votes).
I have never denied this. My claim was that Texas v. White gave retroactive legitimacy to Congress’ claim back in 1866 that only part of the states were allowed to vote thus the XIVth Amendment passed with the requisite number of votes.
From the Articles of Impeachment written by Rep. Bingham
ARTICLE XI.
That the said Andrew Johnson, President of the United States, unmindful of the high duties of his office and of his oath of office, and in disregard of the Constitution and laws of the United States, did, heretofore, to wit: On the 18th day of August, 1866, at the city of Washington, and in the District of Columbia, by public speech, declare and affirm in substance, that the Thirty-Ninth Congress of the United States was not a Congress of the United States authorized by the Constitution to exercise legislative power under the same; but, on the contrary, was a Congress of only part of the States, thereby denying and intending to deny, that the legislation of said Congress was valid or obligatory upon him, the said Andrew Johnson, except in so far as he saw fit to approve the same, and also thereby denying the power of the said Thirty-Ninth Congress to propose amendments to the Constitution of the United States.
Emphasis added
By the time Texas v. White was ruled on, this had been a moot point if for no other reason than the Southern states that voted against ratification changed their votes when the new governments were installed.
My take on Texas v. White is that it holds that the CSA states had never seceeded but while in rebellion, their state governments were illegitimate and are not recognized by the Feds. As it pertains to the XIVth Amendment, if a state does not have a legitimate government, it would not have voting rights on Constitutional amendments.
Remember that in Texas v. White, Texas was represented by A.J. Hamilton, the interim governor appointed under Reconstruction. It would have been interesting to see what the ruling had been if Governor Murrah would have still been governor and took the case to SCOTUS.
I’ll let others decide for themselves whether this claim is consistent with the quoted materials. I note that even in the Articles of Impeachment, there is no citation to Texas v. White. Is there something that you are relying on for the proposition that Congress actually relied on Texas v. White in the impeachment proceedings? They seemed certain enough of their actions before the case was ever decided.
Ok. I’ll try one more time even though I addressed the chronology issue in my last post.
1866 - Congress proposes the XIVth Amendment and claim it passes when 3/4 of the non-secessionist states ratify it. Johnson argues that he had readmitted the secessionist states and that 3/4 of all of the states did not vote for ratification.
1866-1868 - The southern states are readmitted and the reorganized governments ratify the XIVth Amendment eliminating any question about its legitimacy.
1868-1869 - The SCOTUS rules on Texas v. White which invalidates unilateral secession and reaffirms the doctrine of Luther v. Borden (1849) that issues related to state govenments and their recognition by the federal government are political and are therefore under the auspices of Congress and the President. This in effect legitimizes Congress’ form of Reconstruction dating back to the new session of 1866 (the 39th Congress).
So perhaps you are correct that Texas v. White added nothing new beyond Luther v. Borden, but it did validate Congress’ treatment of the states after the war.
No, no, no. You seem to be conflating the issue of representation in Congress with comptetency to ratify a Constitutional amendment.
Pay attention to the chronology. After Andrew Johnson became President in April 1865, he oversaw a process in which the Southern states conducted whites-only elections to constitutional conventions and legislatures. The conventions abolished slavery, the (white) voters elected Representatives, and the new legislatures ratified the 13th Amendment and elected Senators. When Congress reassembled in December 1865, Johnson recommended that the Southern Representatives- and Senators-elect be seated.
Congress accepted the ratification of the 13th Amendment as complete, but disagreed as to seating the Southern Representatives and Senators-elect. This inconsistency was noted by opponents at the time: “If the Southern legislatures can ratify the 13th Amendment, why can’t they elect Senators?” Nevertheless, that was how Congress voted.
Then, Congress proposed the 14th Amendment (June 1866) as an additional, implicit requirement for Southern readmission. This was the action Johnson was complaining about during his “swing around the circle”–since Congress had excluded Southern representatives, it was illegitimate and had no authority to propose amendments or do anything else. The issue wasn’t the number of states required for ratification; the states were just beginning to consider the Amendment and everybody agreed, following the precedent established by the 13th Amendment, that three fourths of ALL the states were necessary to ratify.
The 14th Amendment was not declared ratified when 22 of the 26 states represented in Congress ratified it, but only when 28 of all 37 states had ratified it.
Actually, three states were not readmitted until 1870. And I don’t see how this eliminated any questions. The states were required to ratify in order to gain readmission. If they had already been readmitted, they might have had grounds to challenge their ratifications.
Not really. And this is the first time you mentioned Luther. Was Luther in question?
How? And now you are definitely changing the argument. You originally identified Texas v. White as an important case, now you are saying that Congress’s actions were justified by a case that predates the Civil War, let alone reconstruction. And *Luther * stands for the relatively uncontroversial principle that the legitimacy of a state government is not to be decided by the federal courts.In Luther, the Court was called upon to decide which of two competing Rhode Island governments was the legitimate one. The Court refused, deferring to the legislative and executive branches:
The issue of the legitimacy and recognition of state governments was not at issue in Texas v. White. Nor was there any reason for the Court to address whether the Guaranty Clause had been violated (indeed, *Luther *already said that the Court could not decide the issue.
The issue in Texas v. White was whether Texas was a state for purposes of federal jurisdiction. The Court held that Texas’s secession was void, and that Texas had not left the Union. The Court expressly did not rule that Congress’s actions were constitutional. That’s just not part of the case.
Much controversy on this subject. Both sides make good points.
So why don’t we finally resolve the issue with a constitional amendment prohibiting secession?
Like the Hotel California----you can check out , but you can never leave.
I mean —it is not like there are not stupider amendments to the Constitution that might very well pass.
The flag burning amendment for example. Or the prayer in schools amendment. Both of which are dip shit stuff—should not even be worth consideration. This nation will not be traumatized in any fashion whether these amendments pass or not.
But the idea legality of secession IS a serious problem. And this nation would be seriously traumatised by secession. It may come back to bite us in the butt–if we don’t pay a little bit of attention to it.
Me wonders sometimes why this matter was not discussed and resolved during the Constitutional Convention.
Such an obvious thing you know to decide one way or 'tother.
If you join voluntarily—can you also leave voluntarily?
I think it was discussed and the resolution was done by the 10th amendment. If it ain’t there specifically in the Constitution-------then any individual state can decide the issue for itself.
It was discussed during the New York ratification debates. According to Rakove:
Original Meanings at 126.
Federalists blocked agreement to that formula, and (with the help of 12 Anti-Federalists) to a motion to modify the formula to a more ambiguous one which replaced, “the words upon condition nevertheles’ with ‘in full confidence nevertheless,’ in effect substituting a political expectation for a legal qualification.” Id. at 127. This motion rejected Lansing’s final effort to reserve a “right to withdraw.” *Id. *
This suggests that few believed that a right to secede was automatic, and that it was politically impossible to get the right by agreement.
You think they discussed secession during the First Congress? Do you have a cite?
By the time the 10th amendment was ratified every state then in existence was already part of the Union. The timing here just doesn’t make legal sense. If the states were already part of the Union, and didn’t have the right to secede until the 10th amendment was ratified, this is a pretty significant change. It does not appear to be supported by either the text of the amendment or the discussions at the time.