Lawyers and the case law on secession
When you as a lawyer or law professor whether or not secession is legal, you will often be told that it is illegal based on the case of Texas v. White . Although this Supreme Court case is often referenced, few are familiar with the case or the details of the case, which is so often cited. When those lawyers or law professors cite the case, in many cases, it stops the questions and makes them look like they know what they are talking about. The more you know about the case, the more you realize that it really raises more questions than it does settle questions.
In legal studies, there are the laws which are passed by duly elected legislative bodies and then there is case law. With each court ruling, laws are modified and changed. Under ideal circumstances, court rulings consider previous decisions and make their rulings consistent with those rulings. The more consistent the rulings, the more established the law is. When the court rulings are inconsistent with the previous rulings, although it may be a precedent, there are serious problems. Texas versus White is one of those cases which set precedents, changed the body of law and now needs closer examination. Although it needs close examination, few legal scholars dare to venture into that case, since it would upset the apple cart and weaken the current judicial establishment stance on the issue.
The Setting of Texas v. White
During the period of reconstruction, a Texas businessman named George White was trafficking in pre-war bonds issued by the State of Texas. He had been collecting many of the bonds and during his collection of them, the state financial agent, George Paschal attempted stopping him from this activity by means of legal action. Since financial times were difficult, the bonds were a potential source of great revenue. Paschal was out to stop the trafficking in those bonds.
Since Texas was in the midst of reconstruction, it was not legally considered a state, but rather, part of a military district. Being part of a military district, the legal rights of the State of Texas were suspended. Although under pre-war circumstances, such legal cases could be brought before the Supreme Court of the United States, since Texas was not a State at that juncture, it was not allowed that legal right. Despite not having the right, the Supreme Court decided to hear the case.
Prior to taking the case, the
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