To the SCOTUS and Back in Time!

Texas v White was argued before our nation's Supreme Court back in 1869. The case is being argued again tonight at the High Court, with Justice Antonin Scalia presiding. I'm fortunate to be able to attend this reenactment event sponsored by The Supreme Court Historical Society.

I'm interested in this case, because one of the key questions argued was whether or not individual States have a right to secede from the federal union. In the 1869 majority opinion, Chief Justice Chase referenced the question stating, "It is needless to discuss, at length, the question 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." He then offered his answer to the question, stating:

The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form, and character, and sanction from the Articles of Confederation. By these the Union was solemnly declared to 'be perpetual.' And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained 'to form a more perfect Union.' It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?

Justice Chase then continued to conclude that, "The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.       When, therefore, Texas became one of the United States, she entered into an indissoluble relation."

What troubles me about his opinion is that it is exceptionally flimsy, as three letter phrased jurisprudence seems often to be (ie elaborate war powers unpacked from the mere title "commander in chief"). What's more, this flimsy phrase comes from the preamble to the Constitution, a preamble that briefly explains the purpose of the constitutional machinery that it later provides. The preamble, however, is not that machinery that it introduces. The law, the articles, and the amendments are the machinery and while the preamble explains motivations for creating those mechanisms, it is not itself a mechanism.

Notably the machinery following the preamble does not mention secession, or a finality of union, or any of the conclusions that Justice Chase divines from his three lettered introductory phrase. What does follow, however, is the Tenth Amendment which states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Secession is not a power discussed, and it is certainly not prohibited to the States, therefore the correct Constitutional result would be that individual States do in fact have a right to secede. Justice Chase for some odd reason felt that "It is difficult to convey the idea of indissoluble unity more clearly than by ["a more perfect union]." Certainly he was wrong, and the idea could have been better conveyed by an Article declaring that secession was prohibited to the States, and that union was final.

It also appears to me, that even if we accept the phrase "more perfect union" to be the machinery of the Constitution instead of an introductory phrase, forcing individuals to remain in a union no more perfects a union, than outlawing divorce for a battered spouse perfects a marriage. A more perfect union, in my view, is better achieved by voluntary action and freedom of choice and conscience. Justice Chase appears to have believed that the barrel of a gun makes for a more perfect relationship.

I'm looking forward to hearing this issue argued tonight, and I'm especially interested to hear how Justice Scalia rules on this issue raised nearly one hundred and fifty years ago.

Update: It was a wonderful evening and the event was enjoyable but, sadly, three days of actual argument turned into forty minutes of argument for the reenactment, meant that the secession question was mentioned but not actually argued.