A more perfect Union
or There are no take-backsies in the Constitution
When the Confederate states seceded from the Union in 1861, they argued that the Constitution was merely a “compact” that they had voluntarily entered into and could depart from at their pleasure. The remaining states conversely held that the Constitution formed an indissoluble Union from which no member could recede. But as I wrote about in my previous post, the Union position on the constitutionality of secession put the federal government in an awkward position in terms of how it regarded the ensuing Civil War. Was it putting down an insurrection of rebellious member states or waging a war against a foreign nation, the Confederate States of America?
The question was not merely academic, it entailed significant real world consequences. When the Navy caught Confederate blockade runners, for example, should it treat them as privateers, entitled to protection under the laws of war, or as pirates, subject to execution as enemies of all mankind? More generally, were captured Confederate soldiers prisoners of war or insurrectionists?
President Lincoln was initially of the view that acts of violence committed by Confederates against the authority of the United States were insurrectionary crimes subject to punishment as such. But if the Union started prosecuting and executing captured rebel combatants as criminals, the Confederacy was guaranteed to retaliate in the same manner against captured Union soldiers. And yet, if the Union failed to prosecute, it would be effectively granting Confederate soldiers POW status and thereby acknowledging the sovereignty of the Confederacy as a belligerent under the laws of war.
In the Prize Cases, the U.S. Supreme Court flipped the question on its head, asking how the Confederacy could claim to be a sovereign nation engaged in a war of independence and at the same time deny that it’s sea commerce captured in the course of that war constituted legitimate prizes under the laws of war. The court embraced a “mixed” theory, allowing the federal government to treat the conflict as either law enforcement or war, as suited its needs.1 But in the Prize Cases, the court was not called on to decide directly the constitutionality of secession.
The status of the Confederate combatants continued to vex the federal government after the conclusion of the Civil War, because the laws of war only immunized Confederate soldiers from prosecution for treason during the war itself. Once the conflict was over, they were fair game. But such prosecutions were potentially politically explosive. The fate of the ex-Confederates was decided anticlimactically when President Johnson issued a general amnesty in 1868. The Supreme Court did, meanwhile, rule on the constitutionality of secession, but under circumstances that were far removed from the context of criminal prosecution and did not require it to confront the dangerous question of whether Confederate soldiers had been traitors or patriots.
Texas v. White
In 1850, the U.S. government had issued $10 million in bonds to the State of Texas as consideration for the settlement of certain disputes it had with the state relating to the precise location of the Texas’s boundaries and the fact that the U.S. had not assumed the state’s debts when it joined the Union.
Fast forward twelve years, to 1862. The Confederate government was desperately trying to finance its war effort against the vastly larger and better-resourced federal army, but lenders were understandably leery about extending credit to the fledgling Confederacy. The Texas legislature realized, however, that it was still sitting on several hundred thousand dollars in U.S. bonds left over from the 1850 settlement. Union credit was well-established and the U.S. bonds, unlike Confederate debt instruments, were marketable. The Texas legislature authorized the sale of the U.S. bonds to, among others, White and Chiles, who agreed to secure supplies from Mexico for the defense of the state.
After the war Texas, then under military occupation by the Union army, brought a lawsuit in the Supreme Court, seeking return of the bonds and to prevent White and Chiles from redeeming them. Texas argued that its prior secessionist government had been illegitimate and the actions of that government in furtherance of secession were consequently void. White and Chiles had no right to the bonds, the argument went, because they still belonged to Texas. And those rascals had never even delivered the bargained-for supplies, to boot!2
Article III, section 2 of the Constitution grants the Supreme Court original jurisdiction (power to hear a case in the first instance, as distinguished from appellate jurisdiction) over lawsuits brought by states. But was Texas still a state of the Union that could invoke the court’s original jurisdiction? It had purported to leave, waged brutal war against the federal government for four years, was currently under occupation by the Union army, and Congress had refused to seat its elected congressmen.
Determining that the court did have jurisdiction, Chief Justice Chase, writing for a five justice majority, rejected the compact theory of the Constitution in Texas v. White in 1869 and held that not only was Texas still a part of the Union, it had never, and could never have, been out of it. Chief Justice Chase wrote that
[w]hen … 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. 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. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States.
The “obligations of the State [of Texas], as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired.” Consequently, the ordinance of secession passed by Texas and all acts taken by its legislature in furtherance of secession, including the sale of the bonds, had been “absolutely null” and “utterly without operation in law.”
Leagues and unions
So in Texas v. White, the Supreme Court confirmed that there are no take-backsies in the Constitution. But we might well still wonder, why not? After all, it’s undisputed that the several states were sovereign and autonomous at Independence and chose voluntarily to hang together for their mutual survival.3 And who, other than Mexico, would dare to question that the Lone Star State was an independent nation before it decided to throw its lot in with the United States?
When co-equal nations enter into accords for their common benefit, they normally reserve the right to change their mind when it better suits their interests. The decision to exit a free trade zone or mutual defense pact, after all, certainly would not justify the other members declaring war, invading, occupying, and overthrowing the government of the exiting nation, in order to force it back into the alliance.
Professor Amar in fact argues that the ratification of the Constitution was itself in effect an act of mass secession by nine states from the Articles of Confederation, the Constitution’s predecessor. But according to him, that was just fine, because the Articles were a mere “league,” amounting to nothing more than a multilateral treaty, sort of like NAFTA,4 which any member could exit when it felt like the others weren’t living up to their side of the bargain.
Conversely, Professor Amar asserts, when the states ratified the Constitution, they formed a “more perfect Union” and thereby lost their independent sovereignty and the right of secession. In the Constitution, the separate peoples of the several States became “We, the People” of the United States.
The key difference that distinguishes a league from a union is unanimous consent. In a league, in which each member nation remains fully autonomous, every member has a veto and can always go its own way. The league can only do those things to which all members agree.5 A prominent contemporary analogue is the U.N. Security Council. In a union, on the other hand, a majority of states can drag along the unwilling minority. The autonomy of individual states is subsumed by the primacy of the union.
Thus, the Constitution’s Supremacy Clause and amendment procedure in Article V conclusively repudiate the right of secession. No one state, or minority of them, can dissolve the Union or prevent the whole from action, and even a majority itself is constrained by rules of the Constitution designed to check its prerogatives. If the Union is ever to be dissolved, it must be done so according to the rules of the Constitution itself.
Chief Justice John Marshall encapsulated the sea change wrought by “a more perfect Union” in 1824 in Gibbons v. Ogden:
It has been said that [the states] were sovereign, were completely independent, and were connected with each other only by a league. This is true. But, when these allied sovereigns converted their league into a government, when they converted their Congress of Ambassadors, deputed to deliberate on their common concerns and to recommend measures of general utility, into a Legislature, empowered to enact laws on the most interesting subjects, the whole character in which the States appear underwent a change, the extent of which must be determined by a fair consideration of the instrument by which that change was effected.
For a more in depth treatment of these issues, check out chapter 5 of Lincoln’s Code: The Laws of War in American History by John Fabian Witt.
Allegedly, White and Chiles did arrange for transportation of the subject materials from Matamoros, Mexico to Austin but they were waylaid by bandits, supposedly disbanded soldiers who had served under General Kirby Smith.
In order not to hang separately.
NAFTA is technically not a treaty, at least for constitutional purposes, but it suffices to illustrate the concept.
In theory, the Confederation Congress could take action by super majority (nine of thirteen states) but in practice it had no power to force any dissenting state to follow a congressional directive with which it disagreed. In addition, the Articles could not be amended without unanimous consent. That was why the ratification of the Constitution was a “secession” (it only required nine) and not merely an amendment of the Articles.