In the 1868 case of Texas v. White, 74 U.S. (7 Wall.) 700, a case dealing with the title to some U.S. bonds, the Supreme Court ruled that Texas', and hence the South's, attempted secession in 1861 was unconstitutional. But the opinion also contained some wording that might give secessionists a way around White.

It's unfortunate that the Court used White as the vehicle to address the constitutionality of secession. The Court reached the constitutionality issue only because of a jurisdictional question; and it was virtually impossible for the Court not to hold secession unconstitutional a mere three years after the end of the War Between the States. A finding of constitutionality would have rendered unnecessary all the death and misery of that war. Of course, it was unnecessary. But the point is that the Court was under tremendous pressure to uphold the result of the war as if constitutional issues are settled on the battlefield. (For an excellent overview of why secession was constitutional, Lincoln's arguments against it, and various other aspects of the secession issue, see u201CWas the Union Army's Invasion of the Confederate States a Lawful Act?u201D by James Ostrowski.)

No, this was certainly not the optimum test, or a fair test, for a decision on such a vital constitutional matter. Nevertheless, the case, wrongly decided as it probably was, is out there and serves as a significant hurdle for secessionists if we hope to secede lawfully. If we look at secession as a matter of political will and are not concerned with secession's constitutionality, White is not particularly important. But let's assume for now that the goal is lawful, constitutional secession.

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So what is the potentially helpful language the Court used? After noting that it was u201Cneedless to discuss at length whether the right of a State to withdraw from the Union for any cause, regarded by herself as sufficient, is consistent with the Constitution of the United States[,]u201D the Court then determined that the Union was intended to be perpetual and then stated that after Texas entered into u201Can indissoluble relationu201D with the Union: u201CThere was no place for reconsideration, or revocation, except through revolution or through the consent of the States.u201D (Emphasis added.)

Consent of the states. What does that mean? We know it doesn't mean a constitutional amendment. That is a term of art, and there is no logical explanation as to why learned justices would use the phrase u201Cconsent of the statesu201D if they meant constitutional amendment. Does this phrase tell secessionists that there is another way to secede other than constitutional amendment? Does it mean the consent of a majority of states?

Opponents of secession will no doubt say that the phrase is mere dicta and has no controlling effect. Dicta are, basically, a comment that isn't essential to the case's outcome. (The full term is obiter dicta: dead words. Dictum is singular.) Dicta aren't part of the holding. But lawyers and judges argue all the time about whether a phrase is dicta or holding. Richard Posner, judge and legal scholar, once noted that the distinction between the two concepts u201Cis fuzzy not only at the level of application but also at the conceptual level.u201D Posner, u201CThe Federal Courts: Crisis and Reformu201D (1985). Some have said calling something dicta merely means: I don't want to follow this decision. So dismissing the phrase as dicta, while a predictable tactic, isn't necessarily fatal to the use of the phrase by secessionists.

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Complicating matters more there's a concept called judicial dicta. These are dicta that deal with an issue that was briefed and argued and was directly involved in the decision but isn't essential to the decision in the case. Judicial dicta, also difficult to define, are given more weight than dicta.

The u201Cconsent of the statesu201D phrase is, at worst, judicial dicta, as the issue of constitutionality was briefed and argued. The Court's comment must be given some weight. It has some meaning. And it helps secessionists. Constitutional amendment requires 38 states. And getting the Court to overturn White is highly unlikely. So this consent concept provides a third, possibly somewhat easier, option than either amendment or overturning of the case.

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Michael C. Dorf, a law professor at Columbia and a constitutional scholar, is one of the few commentators who has addressed this language in White. In an article about secession, Dorf, after saying that White held secession unconstitutional, looked to the u201Cconsent of the statesu201D language and said, essentially, that we don't know what it means but it may provide an argument for states that want to secede. The article, interestingly, was addressed to a question about whether blue states could secede after the 2004 election. The title of the article, in fact, was u201CDoes the Constitution Permit the Blue States to Secede? With Permission, Perhaps; Unilaterally, Nou201D FindLaw (Wednesday Nov. 24, 2004).

If the White language does allow secession on the approval of the states (however that approval is given), how likely is it that secessionists could get 26 states? Well, the original 11 Confederate states would be a good start. Vermont has one of the most active secessionists movements in the U.S., so it might join in. North and South Dakota, Montana and Idaho are possibilities. Oklahoma is a likely candidate. Missouri and Kentucky are possibilities. That's a total of 19. Approval by these states won't happen immediately, but if the federal government continues to trample on the rights of the people who thinks it won't? And if the secessionist movement can effectively educate the public, especially in states that might agree to secede, maybe getting 26 states isn't out of the question in the foreseeable future. And it's always possible that a few blue states will approve of secession just to get rid of us.

February 4, 2010

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