April 15 is a rather significant day for Texas and Texans.
While most of us observe this day — Tax Day — with a little grousing about why we have to pay so much in taxes to a government that doesn’t listen us any more, April 15 actually has another significance.
On this day in 1869, the U.S. Supreme Court ruled in the case of Texas v. White that state sovereignty (allegedly guaranteed by the Tenth Amendment) does not exist.
The case remains a point of contention to this day between statists, who use it as “proof” that secession is “illegal,” and various secessionist and nationalist groups around the country, who maintain the ruling was not only flawed, but that the Supreme Court had no jurisdiction in the case because at the time, Texas was not even a state.
As part of the settlement of border claims which came about in the Compromise of 1850, Texas received a payment of some $10 million from the fedeeral government. That payment came in the form of U.S. Bonds. When the state’s secession convention passed an ordinance of secession in February, 1861, not all of the bonds had been sold.
Sale of the bonds required the endorsement of the governor — which, prior to secession, was Sam Houston. A Texas Unionist notified the U.S. Treasury that outstanding bonds remained, and to prevent the sale of such bonds from funding the Confederate war effort, the Treasury ran a legal notice in the New York Tribune stating it would honor no bonds without Houston’s signature.
In spite of the warning, some 136 of the bonds were sold to a brokerage firm headed by George W. White and John Chiles, who in turn sold them to various individuals. Some of the bonds were actually redeemed by the Treasury because it could not be determined they originated in Texas.
With the end of the Civil War, the new reconstruction government of Texas discovered the sale of the bonds and sued the brokers in an attempt to re-claim the state’s money. The case went directly to the Supreme Court under Article III, Section 2 of the United States Constitution which granted original jurisdiction to the Supreme Court in all cases “in which a State shall be a party.”
The state’s lawsuit contended that the actions of the Confederate legislature which allowed the bonds to be sold was unlawful, and that any sales they had made of the bonds were equally invalid.
The brokers’ attorneys began their argument with the fact that Texas was, technically, not a state in 1869 — it was a territory under military occupation and jurisdiction, the constitutional rights of its citizens as unprotected as those of the Indian tribes on reservations, and it had no Congressional representation.
The Court’s decision came as little surprise, given the times and the fact that most of the members had been appointed by Abraham Lincoln. The court ruled 5-3 that the state had a right to recover the bonds, even those which had been re-sold and redeemed.
Chief Justice Salmon Chase, in writing the opinion for the majority, went fishing. The original Articles of Confederation maintained that the union of the original 13 colonies was “perpetual,” he said, and that sunder the U.S. Constitution, which was formed to create “a more perfect Union,” states gave up all rights — both present and future — to independence.
“When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State,” Chase’s opinion reads. “The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final.”
Chase’s contention was that Texas, even when a member of the Confederacy, remained one of the United States and that all acts of any representative body during the Confederacy period were “absolutely null.”
Justice Robert Grier wrote the dissenting opinion, maintaining that the defendants were correct: Texas had indeed left the Union of its own accord and its status in 1869 was that of a conquered territory, not a state — and that the Supreme Court had no jurisdiction to hear the case.
“The original jurisdiction of this court can be invoked only by one of the United States. The Territories have no such right conferred on them by the Constitution, nor have the Indian tribes who are under the protection of the military authorities of the government,” he wrote. “If I regard the truth of history for the last eight years, I cannot discover the State of Texas as one of these United States.”
Grier cited the U.S. Constitution as noting that “each state shall have at least one Representative” in Congress, and that each state shall also have at least two Senators. Texas had no such representation, he said, and therefore was not a State.
Grier said that the state’s attempts to re-gain the bonds amounted to an insanity defense: “Having relied upon one fiction, namely, that she is a State in the Union, she now relies upon a second one, which she wishes this court to adopt, that she was not a State at all during the five years that she was in rebellion. She now sets up the plea of insanity, and asks the court to treat all her acts made during the disease as void.”
Chase said that despite the fact that Texans voted to leave the Union and relected their own government, the Constitution gave power to the federal government to supress “insurrection” and that the rights of the state remained unimpaired by the action of its people.
The state’s ordinance of secession, he wrote, was “utterly without operation in law” and that the Civil War itself was not one fought between two nations, but rather between one nation and insurgents:
“It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation.”
Justices Noah Wayne and Samuel F. Miller also dissented, although for different reasons than those given by Grier. They agreed with the majority that the bonds had been sold illegally by an illegal government, but agreed with Grier that when the case was filed, Texas was not a state but was instead conquered territory.
Interestingly, none of the Justices even mentioned the Tenth Amendment — the amendment which holds that all powers not expressly given to the federal government under the Constitution remained in the hands of the sovereign states, “or to the people.”
History recalls that the Constitution would not have been ratified and put into force had the 10 amendments now known as our “Bill of Rights” not been included. Without the concept of state sovereignty, there would be no United States.
It is perhaps poignant to consider that the states which originally seceded from the Union did so because the federal government had taken on powers and roles never authorized by the Constitution, and was acting in defiance of state sovereignty.