Can Texas Secede from the United States?
When Texas . . . became one of the United States, she entered into an indissoluble relation.
Salmon P. Chase
In Texas, talk of secession (often referred to as “Texit”) flows under ground like the natural spring waters that surge in the Edwards Aquifer. Occasionally, it bubbles to the surface. Whenever this happens the talk is usually just good old fashion, fun loving braggadocio about Texas being the ninth largest economy in the world, a leader in food, energy, and technology production, as well as in space exploration, with deepwater ports and an international boundary. However, at other times it arises as a torrent of real political and legal discussion. I couldn’t tell whether the guy at my local Fourth of July parade sporting an “American Until Texas Secedes” shirt was just being silly or serious, but there’s no doubt where the Texas GOP stands on the secession question. At their 2022 convention in Houston the platform committee put forth plank 224, concerning Texas Independence:
We urge the Texas legislature to pass a bill in its next session requiring a referendum in the 2023 general election for the people of Texas to determine whether or not the State of Texas should reassert its status as an independent nation.1
Over the past few years Texas has experienced a tremendous influx of new citizens, many of whom may not realize Texas was an independent republic for nearly ten years, from 1836, after the defeat of the Mexican army under the command of Antonio López de Santa Anna, until 1845, when Texas was annexed by the United States.2 For the next sixteen years Texas enjoyed a measure of peace and prosperity as an American state. But, as a result of the slavery controversy and the election of Abraham Lincoln, Texas voted to secede from the United States in 1861.
The question then (in 1861) was, as it is now (in 2022): Can Texas legally secede from the Union? This question isn’t addressed in the Texas GOP platform, nor by legislators such as Senator Ted Cruz or State Representative Kyle Biedermann, both of whom have supported referendums of secession in the past. An affirmative answer to the question is merely assumed if it’s the people’s will, expressed through their vote. However, answering the question in the affirmative isn’t so simple as all that. The people may vote for any number of issues that are in and of themselves unconstitutional—and therefore illegal. For example, some may wish to return to the days of slavery, arguing that it’s a Tenth Amendment issue. But their vote in the affirmative on such a referendum doesn’t magically render the Thirteen, Fourteen, or Fifteenth Amendments null and void.
So, the question remains: Can Texas legally secede from the United States?
Now, I should make clear, I’m not an attorney nor do I have formal legal training, but my comprehension of the English language is above fair to middling, and I’m a fair crackerjack at history.
So, what’s the answer? Simply put: While my Texas-lovin’ heart is attracted to the romantic notion of the Republic, the fact is, believing Texas can secede from the United States ranks up there with believing in chupacabras and jack-a-lopes. It’s a myth.
Those who take the contrary position, who do believe in chupacabras and the legality of Texas secession, always bring up the “Joint Resolution for Annexing Texas to the United States,” which was approved on March 1, 1845. Their argument centers around the language that allows Texas sovereignty over whether it wishes to remain one large state or divide into four smaller states. The resolution reads:
New States of convenient size not exceeding four in number, in addition to said State of Texas and having sufficient population, may, hereafter by the consent of said State, be formed out of the territory thereof, which shall be entitled to admission under the provisions of the Federal Constitution.3
Of course, admission of any new states created out of the state of Texas was subject to congressional approval.
But more to the point on the question of secession: Nowhere in the 1845 resolution on annexation does it address the right of secession. In fact, one could make an argument against such a legal right based on the language in article two, section two of the joint resolution, requiring the Republic of Texas to “[cede] to the United States all public edifices, fortifications, barracks, ports and harbors, navy and navy yards, docks, magazines and armaments, and all other means pertaining to the public defense, belonging to the said Republic of Texas.” The argument is this: If Texas had a right to legally secede from the Union, based on the joint resolution of annexation of 1845, then why isn’t there a provision for Texas reasserting its sovereignty over the means of its own public defense?
That’s just one hurdle the pro-secessionists have to overcome. Another is historical. Americans, North and South, fought a civil war to settle two primary questions: Whether slavery should continue within the United States and whether states have sovereignty over Constitutional cords that join them to the Federal Union.
Before the Civil War became a war of emancipation it was a war to preserve the Union. Abraham Lincoln had always argued secession was illegal and that the southern states were in rebellion against the United States. He never recognized the Confederacy as a legitimate and sovereign nation. To do so would have transform the conflict into a war between legal belligerents instead of what it was: an insurrection to overthrow the legitimate government of the United States. In Lincoln’s calculation, just as no state on its own could join the Union, so “no State upon its own mere motion, can get out of the Union,—that resolves and ordinances to that effect are legally void; and that acts of violence, within any State or States, against the authority of the United States, are insurrectionary or revolutionary, according to circumstances.”4
The sacrifice of nearly 750,000 Americans, North and South, in that terrible war cannot be so easily dismissed just because some in Texas today would like to see the Republic rise again.
Texas was readmitted to the United States in 1870, but a year before the Supreme Court took up the legality of secession in Texas v. White (1869). The case revolved around the transfer $10 million in U.S. Bonds to the state of Texas in 1851. After the war, the Reconstruction government claimed Texas, while in the Confederacy, illegally sold the bonds. When the Reconstruction government tried to reclaim the bonds Texas filed suit to the Supreme Court. The Court had to decide two questions: Whether Texas was eligible to seek redress in the Supreme Court and whether Texas could constitutionally reclaim the bonds. In a 5 to 3 decision, the Court ruled Texas indeed had the right to bring suit because Texas had remained a state of the United States, even during its rebellion and while it was governed under military rule during Reconstruction, and that Texas had no right to unilaterally secede from the Union. Here’s how Chief Justice Salmon P. Chase put it in his majority opinion:
The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form, and character, and sanction from the Articles of Confederation. By these the Union was solemnly declared to “be perpetual.” And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained “to form a more perfect Union.” It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?
. . .
When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.
Justice Chase went on to say that the act of the Texas legislature in adopting a resolution of secession in 1861, even if ratified by a majority of voters in Texas, was illegal. “Considered therefore as transactions under the Constitution,” he wrote, “the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law.”5
And if that isn’t enough, the new Constitution of Texas, adopted on February 15, 1876, after Texas was readmitted into the Union, clearly states in article one, section one: “Texas is a free and independent State, subject to only the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States.”6 This is to say, Texas is free and independent to govern itself in so far as it doesn’t violate the United States Constitution. In that capacity, Texas ensures that our institutions remain free and the Union perpetual.
Now, one last word. In 2006 a screenwriter asked the champion of conservative Constitutional originality, Justice Antonin Scalia, a hypothetical question about secession. Scalia responded:
I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court. . . . The answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, “one Nation, indivisible.”).7
So it is, and so it ever has been since 1845. And if those who insist on howling for secession persist and put it to a vote, then, I guess, to arms!
Texas GOP, “Report of the Permanent 2022 Platform & Resolutions Committee,” 32, https://texasgop.org/wp-content/uploads/2022/06/6-Permanent-Platform-Committee-FINAL-REPORT-6-16-2022.pdf.
Or as Texans like to say, “The United States was invited to join Texas.”
“Joint Resolution for Annexing Texas to the United States, Approved March 1, 1845, art. 2, sec. 3, Texas State Library and Archives Commission, https://www.tsl.texas.gov/ref/abouttx/annexation/march1845.html.
Abraham Lincoln, “First Inaugural Address,” Washington, D.C., March 4, 1861, in The Collected Works of Abraham Lincoln, vol. 4, ed. Roy P. Basler (New Brunswick: Rutgers University Press, 1953) 265, emphasis in original. By “resolves” and “ordinances,” Lincoln meant resolutions or referendums passed by states to secede are “legally void,” meaning they are illegal.
Texas v. White, 74 U.S. 700 (1869), https://scholar.google.com/scholar_case?case=1134912565671891096&hl=en&as_sdt=6,44&as_vis=1.
Constitution of the State of Texas, art. 1, sec. 1, https://tlc.texas.gov/docs/legref/TxConst.pdf.
Antonin Scalia to Daniel Turkewitz, letter, October 31, 2006, http://newyorkpersonalinjuryattorneyblog.com/uploaded_images/Scalia-Turkewitz-Letter-763174.jpg.