pre-civil war state constitutions

[Mark Graber]

"The Constitution, in all its provisions, looks to an indestructible
Union, composed of indestructible States. "  Texas v. White, 74 U.S.
700, 725 (1868).

MAG




>>> William Araiza <Bill.Araiza at lls.edu> 9/19/2005 6:33:07 PM >>>
I have a vague memory of some statement somewhere (Texas v. White 
(1869)?) to the effect that the secessions had been illegal and thus 
that the confederate states in fact had always remained in the Union,
at 
least as a formal matter.  Thus, one would think that sovereignty 
continued throughout the period.  But this is superficial analysis
based 
on possibly wrong facts.

Bill Araiza
Loyola (Los Angeles)

Jessica Silbey wrote:

> This is my impression as well - at least it was my instinct. But then

> I began thinking about how a new state constitution, upon the 
> re-entering of the union, might be akin to the establishment of a new

> government, a new sovereign entity. (To be sure, the southern states

> that re-entered the union post civil war became participants in the 
> union on drastically different terms than in 1789.) In this case, it

> seems to me that precedent from the pre-war era might inform post-war

> cases, but would not be binding in the way precedent is considered to
be.
>
>  
>
> ________________________________
>
> Jessica Silbey
>
> Assistant Professor of Law
>
> Suffolk University Law School
>
> 120 Tremont Street
>
> Boston, MA 02108
>
> 617-305-6270 (office)
>
> 617-305-3079 (fax)
>
> jsilbey at suffolk.edu <mailto:jsilbey at suffolk.edu>
>
>
------------------------------------------------------------------------
>
> From: Douglas Laycock [mailto:DLaycock at law.utexas.edu] 
> Sent: Monday, September 19, 2005 4:47 PM
> To: Jessica Silbey; CONLAWPROF at lists.ucla.edu 
> Subject: RE: pre-civil war state constitutions
>
>  
>
> I have not seriously investigated this question, but certainly my 
> impression is that each state was viewed as having had a continuous 
> internal government, judicial system, and body of law from before the

> war until the war was over. 
>
>  
>
> Political transfers from the secessionists to the reconstruction 
> governments and back to the "redeemer" governments changed
substantive 
> provisions in statutes and state constitutions, and when such 
> a provision was rewritten, precedent interpreting the predecessor 
> provision became irrelevant.  The political makeup of state supreme 
> courts changed in these transitions as well, so that courts were 
> sometimes disposed to distinguish, ignore, or overrule precedents
they 
> didn't like.  But I am not aware of any doctrine that said precedents

> from certain periods just didn't count.
>
>  
>
> In the Texas Reports we have a volume called Texas Supplement, which

> is a set of decisions from 1860 and the early war years.  They did
not 
> originally get published, apparently from the reporter's neglect of 
> duty in all the excitement.  But they were viewed as part of the law,

> and somebody published them in the 1870s.  I even had occasion to
cite 
> one once (I can't remember what the point was), and no one suggested

> that it wasn't really a precedent.
>
>  
>
> Douglas Laycock
>
> University of Texas Law School
>
> 727 E. Dean Keeton St.
>
> Austin, TX  78705
>
> 512-232-1341
>
> 512-471-6988 (fax)
>
>  
>
>
------------------------------------------------------------------------
>
> From: conlawprof-bounces at lists.ucla.edu on behalf of Jessica Silbey
> Sent: Mon 9/19/2005 1:42 PM
> To: CONLAWPROF at lists.ucla.edu 
> Subject: pre-civil war state constitutions
>
> A student has asked about the status of pre-civil war state court 
> precedent
> in states who fought with the confederacy and who later rewrote their

> state
> constitution.  Did the new state constitution render much of the
pre-war
> precedent irrelevant? I imagine the answer depends on the subject of
the
> precedent and how the state constitution was in fact rewritten. I do
not
> have any sources on the subject at my fingertips, however. Does any 
> one have
> suggestions for reading I can pass along?
>
> Off-list replies welcome.
>
> Thanks.
>
> Jessica
>
> ________________________________
> Jessica Silbey
> Assistant Professor of Law
> Suffolk University Law School
> 120 Tremont Street
> Boston, MA 02108
> 617-305-6270 (office)
> 617-305-3079 (fax)
> jsilbey at suffolk.edu 
>
>
>
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>------------------------------------------------------------------------
>
>_______________________________________________
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>

-- 
Bill Araiza
Associate Dean for Faculty and Professor of Law
Loyola Law School, Los Angeles
Loyola Marymount University
919 Albany St.
Los Angeles CA 90015
213-736-8167 (voice)
213-380-3769 (fax)