What the Supreme Court Actually Decided About Texas in 1869

Texas v. White, the 1869 Supreme Court case cited more than any other against Texas independence, was a lawsuit over bonds. The reconstructed government of Texas sued to recover United States bonds that a state military board had sold in 1865, and it won. Chief Justice Salmon P. Chase wrote the opinion, and with it the sentence opponents have quoted ever since: "The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States."

The Texas Nationalist Movement holds that the sentence was not what the Court needed in order to decide who owned the bonds.

A dispute over $135,000

In 1851 Washington issued Texas 5,000 bonds of $1,000 each, $5 million in all, as part of the settlement of the state's boundary claims. A Texas law said no bond was good in anyone's hands until the governor endorsed it in Austin. The wartime legislature repealed that rule in January 1862. In March 1865 two men, George W. White and John Chiles, received 135 of the unendorsed bonds from the military board in exchange for cotton cards and medicines. On February 15, 1867, the state filed suit in the Supreme Court to get them back.

Before it could reach the bonds, the Court had to decide whether Texas could bring the case at all. White and Chiles argued that Texas had broken its relations with the union in 1861 and so was no longer a state entitled to sue there. The Court divided 5 to 3 on that question. Chase held that "Texas continued to be a State, and a State of the Union," declared the 1865 sale void and ordered the bonds returned to Texas.

Holding and dictum

A court's holding is the reasoning it needs to settle the dispute in front of it, and only the holding binds later courts. Whatever else a judge writes along the way is dictum. In the movement's reading, the indestructible-Union passage is dictum. The Court could have settled jurisdiction by asking whether Texas had a government competent to file suit in 1867, without any theory of the union.

George Rutherglen of the University of Virginia School of Law reached the same conclusion in a 2017 essay: "the jurisdictional holding did not require the Court to opine on the existence of 'an indestructible Union, composed of indestructible States.'" He called the passage "a poorly reasoned dictum."

Part of the bond law the case did lay down was later abandoned. Sixteen years on, in Morgan v. United States, the Court said the position taken in Texas v. White, that the Texas Legislature could limit the negotiability of bonds payable to the bearer, "must be regarded as overruled."

What Chase built it on

Chase opened his discussion of a state's right to withdraw by calling it "needless to discuss, at length." He then discussed it for several paragraphs, resting on two texts. The Articles of Confederation had declared the union "perpetual," and the Constitution's Preamble promised "a more perfect Union." "What can be indissoluble if a perpetual Union, made more perfect, is not?" he asked.

The movement answers both. "Perpetual" appears in the Articles and nowhere in the Constitution that replaced them, though its drafters had the word in front of them. And in 1905, in Jacobson v. Massachusetts, the Court said the Preamble "has never been regarded as the source of any substantive power conferred on the government of the United States, or on any of its departments." In TNM's reading, a sentence that gives Washington no power cannot bind a state to stay forever.

TNM also points to the author. Chase was Secretary of the Treasury from 1861 to 1864 and raised the money for the federal war effort. The movement argues that a judge asked to rule on the legal premise of a debt he had built would not be considered neutral by any modern standard.

One justice rejected the ruling outright. Justice Robert Grier dissented "on all the points raised and decided." Texas was then under military government, and Grier wrote that its status "is to be decided as a political fact, not as a legal fiction." He closed his dissent: "neither my reason nor my conscience can give assent to it."

Where the question belongs

Chase's own text did not shut every door. The paragraph that calls the union indissoluble ends: "There was no place for reconsideration, or revocation, except through revolution, or through consent of the States." The movement does not rest its case on that sentence. It starts with the right of a people to decide how they are governed, which Texans wrote into Article 1, Section 2 of their constitution: "All political power is inherent in the people," and Texans "have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient," pledged only to keep a republican form of government.

The federal Constitution lists in Article I, Section 10 what a state may not do, and leaving the union is not on the list. The Tenth Amendment reserves every power not delegated to Washington "to the states respectively, or to the people."

Courts outside the United States have taken up the same question since. In 1998 the Supreme Court of Canada held that a clear majority on a clear question in Quebec "would give rise to a reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire." In 2010 the International Court of Justice, ruling on Kosovo, found that "general international law contains no applicable prohibition of declarations of independence."

No court has ever been asked about a peaceful vote of Texans followed by negotiation with Washington. TNM's position is that such a vote is a political act reserved to the people of Texas, and that a ruling on bonds traded for cotton cards in 1865 never reached it.