TEXAS v. WHITE 7 Wallace 700 (1869)

In 1867 the Court accepted original jurisdiction of Texas v. White because one party was a state (Article III, section 2). So doing, the Court raised again, as in ex parte milligan (1866) and the test oath cases, a possibility of judicial intervention into military reconstruction. Some decision on the state-status question was needed. Democrats insisted that the nation was not empowered to answer the state-status question and that the South's states, like bottom-weighted dolls, had sprung up, fully restored, with prevailing race hierarchies intact, in the wake of Union Army advances. Almost all Republicans assumed that the South's states, by attempting to secede, had twisted themselves out of their proper federal relations; that the Constitution (Article IV, section 4) imposed a duty on the nation to guarantee every state a republican form of government; and that the nation also possessed temporary "grasp of war" dominion over the defeated states.

Post-Appomattox Texas wished to recover possession of state bonds that secessionist Texas had sold. Counsel for bond buyers argued in 1869, when the Supreme Court heard Texas v. White, that Texas was always a state and the sales were valid. Special counsel for Texas, Unionist George Washington Paschal, author of a recent treatise on the Constitution, insisted that though Texas remained a state, its acts adverse to federal responsibilities invalidated the bond sales; the state should recover the bonds.

Chief Justice salmon p. chase, for the majority of the Court, accepted and restated Paschal's position. The Constitution "looks to an indestructible Union composed of indestructible States." secession was void. Texas's acts supportive of rebellion, performed while seceded, were unsupportable.

Justices robert c. grier, samuel f. miller, and noah swayne insisted that Texas was as much out of the Union in 1869 as in 1861. Therefore the original jurisdiction clause of the Constitution did not apply.

Both the majority and the minority stressed Congress's primacy in defining a state's status. Chase, though insisting that he was not pronouncing upon military reconstruction, by implication approved its constitutional bases and reinforced Court pretensions to at least an equal share, if not more, in implementation of policy, through its review authority.

Harold M. Hyman
(1986)