A Legal Review Of Secession 150 Years Later- Part 2, by TEH

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Secession

On February 1, 1861, a convention of secession was called (and subsequently sanctioned by the legislature) where an ordinance to dissolve the union between Texas and the United States was adopted and Texas declared to be a separate and sovereign state. The relationship to the United States (and its government) was disclaimed; Texas seceded from the Union. Texas thereafter joined with the other Confederate States and declared war on the United States.

“…….The position thus assumed could only be maintained by arms, and Texas accordingly took part, with the other Confederate States, in the war of the rebellion, which these events made inevitable. During the whole of that war there was no governor, or judge, or any other State officer in Texas, who recognized the National authority. Nor was any officer of the United States permitted to exercise any authority whatever under the National government within the limits of the State, except under the immediate protection of the National military forces.”[8]

Status of Texas After the Civil War

And so, the Court came to the filing of the original action by the State of Texas in 1867. The issue clearly before the Supreme Court was whether it had jurisdiction to hear the case. That is, was Texas one of the United States entitled, under the Constitution, to bring its original action before the Court? The issue was raised in light of Texas’ secession, formation, and joinder with the Confederate States of America’s declaration of war against the United States, the defeat of the Confederate States, and the imposition of the Reconstruction Acts upon Texas and the other seceding states. Stated another way, was Texas a State within the meaning of the Constitution immediately after the Civil War and prior to compliance with all of the requirements of the Reconstruction Acts?

The Court held the following:

  1. “ The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States…”[9]
  2. “…..When, therefore, Texas became one of the United States, she entered into an indissoluble relation.”[10]
  3. “…..And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.”[11]

No citation to the Constitution nor to any prior writings were alluded to by the Court. According to the Court, Texas never left the Union, despite its secession, reformulation into the Confederate States of America, and declaration of war on the United States. Texas was before, during, and after the Civil War a part of the United States of America (unless it had won the war).

“Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. 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.”[12]

“Our conclusion therefore is, that Texas continued to be a State, and a State of the Union, notwithstanding the transactions to which we have referred….”[13]

Based on the foregoing analysis and legal conclusions, the Court held that Texas was and had remained a State of the United States and was thus entitled to bring its original action before the Court.

White v. Hart, 80 U.S. 646 (1872)

Context

A suit was instituted in the Georgia Superior Court after Reconstruction, as it applied to Georgia, was deemed terminated, and Georgia had accrued to all of its former rights of representation in the Congress of the United States. Georgia had also amended its Constitution. The suit involved recovery on a promissory note, which was secured by a slave. The reconstituted Georgia Constitution, as approved by the Congress of the United States (as required under the Reconstruction Acts) contained a provision that prohibited the enforcement of such a contract. The issue before the Court was whether Georgia/Congress could pass legislation which invalidated a contract that, when made, was legally enforceable. The following is an analysis of the effect of the Reconstruction Acts visited on the southern states. The legal requirement under the Reconstruction Acts that State Constitutions be amended and approved by the Congress will become significant in the Florida case determining the three league limit of Florida’s offshore jurisdiction.

All of the Confederate States, after their surrender, were governed by the Reconstruction Acts. These acts applied until each Confederate State complied with the terms and provisions of the Acts, including the amendment of their respective state constitutions to recognize the rights of freed slaves. This amended constitution had to be approved by Congress before each state could regain its representation rights in the United States Congress.

____________

The court defined the acts of the individual states in seceding and prosecuting the Civil War:

“…… The doctrine of secession is a doctrine of treason, and practical secession is practical treason, seeking to give itself triumph by revolutionary violence. The late rebellion was without any element of right or sanction of law….The power exercised in putting down the late rebellion is given expressly by the Constitution to Congress. That body made the laws and the President executed them. The granted power carried with it not only the right to use the requisite means, but it reached further and carried with it also authority to guard against the renewal of the conflict, and to remedy the evils arising from it in so far as that could be effected by appropriate legislation. At no time were the rebellious States out of the pale of the Union. Their rights under the Constitution were suspended, but not destroyed.[14]

Again, the Court is of the opinion that the Confederate States had never left the Union. They, and their citizens had, however, lost the right to be represented in the Congress. The Reconstruction Acts provided certain requirements that each state needed to satisfy (in the opinion of the Congress) before their rights of representation in the Congress would be restored.

The Civil War Continues

United States v. Florida, 363 U.S. 121 (1960)

Context

When Florida was admitted into the Union it got to keep, as a condition for statehood, its claim to submerged lands adjacent to its state shoreline boundaries. Then came succession and the Civil War followed by Reconstruction. As part of its congressionally mandated duty under the Reconstruction Acts, Florida was required to amend its constitution in certain particulars.

“ Florida claims that Congress approved its three-league boundary in 1868, by approving[3] a constitution submitted to Congress as required by a Reconstruction Act passed March 2, 1867. 14 Stat. 428. That constitution carefully described Florida’s boundary on the Gulf of Mexico side as running from a point in the Gulf “three leagues from the mainland” and “thence north westwardly three leagues from the land” to the next point. The United States concedes that, from 1868 to the present day, Florida has claimed by its constitutions a three-league boundary into the Gulf.[5] The United States also admits that Florida submitted this constitution to Congress in 1868, but denies that the Gulf boundary it defined was “approved” by Congress within the meaning of the Submerged Lands Act.[6] This is the decisive question as between Florida and the United States.”[15]

____________

The Court held that the Florida constitution, as rewritten and approved by Congress under the Reconstruction Acts, did indeed contain a three marine league boundary. It further held:

“…Thus, by its own description, Congress not only approved Florida’s Constitution, which included three-league boundaries, but Congress, in 1868, approved it within the meaning of the 1867 Acts. In turn, the approval the 1867 Acts required appears to be precisely the approval the 1953 Act contemplates.”[16]

Due to its careful consideration and attention to its offshore boundaries, Florida had affirmed by the Court its constitutionally mandated three league boundary as the same appeared in its constitution which, in accordance with the dictates of the Reconstruction Acts, was approved by the Congress prior to the restoration of Florida’s right to representation.

Kohlhaas v. State, Office of Lieutenant Governor, 147 P.3d 714 (Alaska – 2006)

Context

Secession, long thought to be relegated as a historical aberration, once again raised its head in this new century. This time, it was an individual in Alaska seeking to force the state to place the issue of secession on the Alaska initiative ballot. A modern state court was thus faced with the question of whether the issue of secession was one which Alaska residents could vote on and thus was a proper subject for placement on the initiative ballot. Prior to court review, the lieutenant governor declined to certify the issue for ballot placement since, in his opinion, the initiative sought an unconstitutional end– secession.

_________________

The Alaska Supreme Court agreed with the lieutenant governor. That is, it found that it was unconstitutional for Alaska to even consider seceding from the United States. It further found that neither Alaska, nor any other of the states of the Union, possessed the right to secede before admission to the United States and thus, no state would retain such a right under the Tenth Amendment after admission.

“ When the forty-nine-star flag was first raised at Juneau, we Alaskans committed ourselves to that indestructible Union, for good or ill, in perpetuity.”[17]

Since the act of secession was found to be unconstitutional, the Alaska Supreme Court found that the citizens could not vote on the issue as a referendum item. Alaska would not be seceding from the Union.

NOTE: Second case on same issues reached same conclusion Kohlhaas v. State, Cause No. S-13024 (Alaska 2010)

Conclusions

Under present federal Supreme Court jurisprudence:

  • The union which is the United States can never be dissolved by an independent action of one state (unless approved by Congress and/or the other states?)
  • An individual state may never secede. Apparently, only people rebel; the states remain a part of the Union.
  • Secession can be successful only if accomplished by force of arms (or agreement of the other states/Congress).

Postscript

Arizona

The right to secede simply will not die. In 2011, it was not conservative activists seeking secession but rather liberal activists. According to Reuters, a group of liberals wanted to split Arizona into two states and wanted voters to decide the issue in the next Presidential election (see Alaska).

According to Reuters (May 10, 2011): “A group of lawyers from the Democratic stronghold of Tucson and surrounding Pima County have launched a petition drive seeking support for a November 2012 ballot question on whether the 48th state should be divided in two.”

“The ultimate goal of the newly formed political action committee Start our State is to split Pima County off into what would become the nation’s 51st state, tentatively dubbed Baja Arizona.”

“The ballot measure sought by Arizona secession backers is a nonbinding measure asking Pima County voters if they support petitioning state lawmakers for permission to break away.”

“Before secession could occur, it would have to be approved separately by the Legislature, and by a second, binding referendum by residents of the proposed state.”

References


[8] Texas v. White, 74 U.S. 700 at Page 724 (1869)


[9] ibid, 74 U.S. 725 at Page 725 (1869)


[10] ibid


[11] ibid


[12] ibid


[13] ibid


[14]White v. Hart, 80 U.S. 646 at Page 650 (1872)


[15]United States v. Florida, 363 U.S. 121 at Page 123 (1960)


[16]ibid, 363 U.S. 121 at Page 124 (1960)


[17]Kohlhaas v. State, Office of Lieutenant Governor, 147 P.3d 714 at Page 720 (Alaska – 2006)

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