Texas v. White, Explained

The Case in Brief

Texas v. White, 74 U.S. 700, is a lawsuit about bonds. It became the leading Supreme Court statement on whether a State can leave the Union because, before the Court could decide who owned the bonds, it had to decide whether Texas was a State entitled to sue.

The Court decided the case in April 1869. Chief Justice Chase wrote for the majority. Justice Grier dissented on every point. Justices Swayne and Miller dissented on the question of jurisdiction and agreed with the majority on the merits. The Handbook of Texas describes the decision as five to three. The full text of the opinion and dissents is in the library.

The Bonds

The facts come from the opinion. By an act of September 9, 1850, the United States offered Texas $10,000,000 in five percent bonds "in compensation for her claims connected with the settlement of her boundary." Texas accepted. Half the bonds were delivered to the State. They were dated January 1, 1851, and made payable to Texas "or bearer." They became redeemable after December 31, 1864. A Texas statute provided that no bond "should be available in the hands of any holder until after indorsement by the governor of the State."

On January 11, 1862, the legislature then in power repealed the indorsement requirement and created a military board with authority to use bonds in the treasury for the State's defense. On January 12, 1865, the board agreed to sell bonds to George W. White and John Chiles in exchange for "a large quantity of cotton cards and medicines." On March 12, 1865, White and Chiles received 135 bonds, none indorsed by any governor. Some of those bonds later passed to other buyers or were pledged as security for loans.

After the war, the State's government sued in the Supreme Court to recover the bonds. The Handbook of Texas dates the filing to February 15, 1867.

The Question of Jurisdiction

The Court had original jurisdiction of suits by States against citizens of other States, and it accepted that the States entitled to invoke that jurisdiction "must be States of the Union." One defendant, Chiles, answered that Texas, by severing her relations with the Union in 1861, had "so far changed her status as to be disabled from prosecuting suits in the National courts." If that was true, the Court wrote, "we have no jurisdiction of this suit, and it is our duty to dismiss it."

The Court framed the issue in two questions: "Did Texas, in consequence of these acts, cease to be a State? Or, if not, did the State cease to be a member of the Union?"

Before answering, the Court defined its terms. "It is not difficult to see," Chase wrote, "that in all these senses the primary conception is that of a people or community." He continued: "A state, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed."

What the Court Decided

The case decided three things, and each of them answers a question about the bonds.

First, jurisdiction. The Court accepted that the government organized in Texas after the war, whatever the legal title of its officers, could bring the suit. To get there it relied on its own earlier decision in Luther v. Borden, which leaves to the political branches the question of which government in a State is the lawful one.

Second, the bond contract. Acts of a wartime government "necessary to peace and good order among citizens," such as those governing marriage, inheritance, and the transfer of property, "must be regarded in general as valid when proceeding from an actual, though unlawful government." Acts in support of the war "must, in general, be regarded as invalid and void." The Court held the sale to White and Chiles void as "a contract in aid of the rebellion."

Third, the buyers. The bonds had become redeemable before the sale, and "Purchasers of notes or bonds past due take nothing but the actual right and title of the vendors." Texas won its bonds back.

None of those rulings needs the sentence the case is famous for.

What Chase Wrote About the Union

Before reaching the bonds, Chase wrote at length about the Union. He traced it to the Articles of Confederation, which called it "perpetual," and to the Constitution, ordained "to form a more perfect Union," and asked: "What can be indissoluble if a perpetual Union, made more perfect, is not?" He declared the 1861 ordinance "absolutely null" and "utterly without operation in law." Then came the sentence: "The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States." And then: "There was no place for reconsideration, or revocation, except through revolution, or through consent of the States."

In the same passage Chase wrote that "the perpetuity and indissolubility of the Union, by no means implies the loss of distinct and individual existence, or of the right of self-government by the States." He defined a State as "a political community of free citizens," "established by the consent of the governed." And he set the larger question aside himself, calling it "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."

The Dissents

Justice Grier rejected the majority's approach at the start. "This is to be decided as a political fact, not as a legal fiction," he wrote. He noted that the act of Congress of March 2, 1867, declared Texas a "rebel State" and placed it in "the fifth military district." On those facts he concluded: "Politically, Texas is not a State in this Union. Whether rightfully out of it or not is a question not before the court." On the merits he argued that Texas could not disown its own contracts with its own citizens: "Whether a State de facto or de jure, she is estopped from denying her identity in disputes with her own citizens."

Justice Swayne, joined by Justice Miller, agreed with Grier that Texas, "in her present condition," could not bring an original suit, because "this court is bound by the action of the legislative department of the government." On the merits, he agreed with the majority.

Why the Case Does Not Reach a Vote of the People

The case is cited as though it settled the question of Texas independence for all time. Read against its own record, it does not.

The Union passage is dictum. A holding is the rule a court needs to decide the case before it. This case was about bonds, standing, and jurisdiction, and the Court resolved jurisdiction by deferring to the political branches under Luther v. Borden. The declaration of an indestructible Union was not needed to decide who owned the bonds, and Chase himself called the larger question "needless to discuss, at length."

It is confined to its facts. The facts were an ordinance passed by a convention in 1861 and four years of war. Every case that later applied Texas v. White on this point arose from that war. The Supreme Court has never applied Chase's language to a peaceful decision by the people of a State.

Its own Court has limited it. In Morgan v. United States (1885), the Court wrote that "the original decision of the court in reference to the Texas indemnity bonds in Texas v. White ... has been questioned and limited in important particulars." That limit concerned the bond rules. On the Union passage, the Court in New York v. United States (1992) introduced Chase's words as having been said "with more rhetorical flourish, although perhaps with less precision."

Reconstruction contradicted it. Texas filed its suit on February 15, 1867. Fifteen days later, on March 2, Congress declared Texas a "rebel State" and placed it under military government, the fact Grier pointed to. The Joint Committee on Reconstruction had reported the year before: "Whether legally and constitutionally or not, they did, in fact, withdraw from the Union and made themselves subjects of another government of their own creation." Washington treated Texas as out of the Union for the purposes of Reconstruction while the Court declared that it had never left.

The Chief Justice had a history with the subject. Salmon P. Chase served as Secretary of the Treasury from 1861 to 1864 and financed the war against the States whose departure his opinion declared null. No rule of the day required him to step aside, and the case against the opinion rests on its text. The conflict explains why a careful lawyer wrote a passage that cannot stand on its own.

Consent of the States. Chase named two ways a State's relation to the Union could end: "revolution," which lies outside the law, and "consent of the States." What he closed was a third way, a decision by the people of a State themselves. The opinion never explains why a people's own vote is neither, and it does not say what consent means, who gives it, or in what form.

Texas answered in 1876. The constitution adopted during Reconstruction declared the 1861 ordinance "null and void from the beginning." When Texans chose their own convention again, it wrote the present constitution and left that clause out. Its Bill of Rights calls Texas "a free and independent State" and keeps for the people "at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient." The companion piece in this series traces that language.

How the Case Is Cited Today

When the modern Court cites Texas v. White, it cites the other half of the famous sentence, the part about "indestructible States," in cases about the powers the States keep.

In Coyle v. Smith (1911), the Court upheld Oklahoma's power to move its own capital and quoted Chase's line in what Justice Lurton called "strong and memorable language." In Gregory v. Ashcroft (1991), Justice O'Connor quoted the passage to describe "the constitutional scheme of dual sovereigns." In New York v. United States (1992), she quoted it as "Chief Justice Chase's much-quoted words." In Printz v. United States (1997), Justice Scalia cited it for the point that "It is an essential attribute of the States' retained sovereignty that they remain independent and autonomous within their proper sphere of authority."

TNM Education's Position

TNM Education holds that Texas is a nation. Texas v. White does not reach that claim, and it does not reach the act the Texas Nationalist Movement proposes. The case decided who owned a set of bonds after a war. The people of Texas hold the right to alter, reform or abolish their government, they exercise it by their own deliberate vote, and Texas v. White decided nothing about that vote.

Sources

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