Does Texas have a Right to Secede?

Does Texas have a Right to Secede?
By
James Scott Trimm

My purpose in this article is not to advocate secession at this time.  To the contrary I currently advocate that Texas truly claim its sovereignty by passing the Texas Sovereignty Act (click here for my article on the Texas Sovereignty Act) rather than actually seceding.  My purpose here is simply to demonstrate that Texas does in fact have the right to secede.  

In 1869 the Supreme Court Ruled in the wake of the Civil War:

"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?"
(Texas v. White, 74 U.S. 700)

and:

"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."
(Texas v. White, 74 U.S. 700)

Of course the court's conflict of interest is obvious.  In fact the court's opinion was delivered by Chief Justice Salmon Chase, a former cabinet member under Abraham Lincoln.  But is this true?  Is the United States the Hotel California?

How Did the Supreme Court Become Final Interpreter

The Supreme Court has become the final interpreter of the Constitution for one simple reason: because they say they are.  The Supreme Court usurped this authority, claiming it for itself in 1803 in Marbury v. Madison.  Nowhere does the Constitution assign this role to the Supreme Court, they simply have it because they say they do,


The Supremacy Clause

The Supremacy Clause of the Constitution says:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
(Article 6; Clause 2)

Note that it is the Constitution, not the federal government that is the “supreme law of the land”.  The Constitution is not the same thing as the federal government.  The Constitution is the instrument that creates and restrains the federal government, it is not the federal government itself.

The Constitution is also not the same thing as the Supreme Court.  And in fact the Supreme Court is not even mentioned in the Supremacy Clause. 

Thomas Jefferson

To the contrary Thomas Jefferson wrote:

“…this [federal] government, created by this compact [the Constitution], was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress."
(Thomas Jefferson; Kentucky Resolution 1798)

 James Madison

And James Madison wrote:

"…the powers of the federal government as resulting from the compact to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact, as no further valid than they are authorized by the grants enumerated in that compact; and that, in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states, who are parties thereto, have the right, and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights and liberties, appertaining to them."
(James Madison; Virginia Resolution of 1798)

The Constitution is a compact between a given state, and the other states in the Union. Just as when two foreign powers, for example France and Great Britain enter into a compact, each party has a right to determine for itself its own understanding of the terms of the compact. Likewise each state maintains the right to determine for itself its own understanding of meaning of the terms of the Constitution. This does not conflict with the Supremacy Clause because it is the Constitution (but not the Federal Government ) which is the Supreme Law of the land.

Not only does the Constitution not mention the US Supreme Court in the Supremacy Clause, the Constitution indicates that it is State judges who are expected to determine if a state law is constitutional saying “…and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”


The Tenth Amendment

The Tenth Amendment to the US Constitution reads:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people

This means that the federal government (the Supreme Court included) does not have any power that the states have not specifically delegated to the federal government in the Constitution.  No where in the Constitution do the states delegate to the Federal Government the power to determine for themselves whether or not they deem a state law to be Constitutional, or to determine for itself what it understands the Constitution to mean.

As Thomas Jefferson wrote:

"That the several states composing the United States of America are not united on the principle of unlimited submission to their general government; but that, by compact, under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each state acceded as a state, and is an integral party, its co-States forming, as to itself, the other party;…”
(Thomas Jefferson; Kentucky Resolution 1798)


Unenumerated Rights

The Ninth Amendment to the US Constitution in the Bill of Rights states:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

But do these unenumerated Rights include the rights of the people of a state to secede from the Union?  The answer is very clearly yes.


The Right to Secede is Unalienable

The founding document of the United States of America is not the Constitution, but the Declaration of Independence.  In this founding document we read:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

These “unalienable” rights were not  granted by secular governments nor are they gifts from them, they were endowed  upon us by our Creator and secular Governments may only respect these rights, or infringe  upon them.

But do these unalienable rights include a right to secede?  The Declaration of Independence also states:

"When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation....”

Now it is clear that the Declaration of Independence recognizes the right of “one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station” of “separation” is one of the “unalienable rights” with which mankind are “endowed by their Creator” and thus they are entitled by “the Laws of Nature and of Nature's God”.

The Declaration of Independence Goes on to say:

"We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do."

Again the Declaration of Independence claims the origin of the right to :

“…publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved…”

Is derived from “the Supreme Judge of the world”  while the authority to do so is derived from “the good People of these Colonies”.


The States Retain the Right to Secede

Some have argued that there is no provision in the Constitution allowing a State to secede.  However this is backwards thinking.  The Tenth Amendment to the Constitution in the Bill of Rights reads:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The issue then is not, does the Constitution include a provision allowing a state to secede, but does it include a provision prohibiting a state from seceding (even if it did, this would not strip a state of its right to secede, since this right is unalienable).  The fact is that since the Constitution does not specifically prohibit a state from seceding, states reserve the unalienable right to secede.


Consent of the Governed

As we stated earlier the Declaration of Independence claims that the right to secede is derived from “The Supreme Judge of the world” while the authority to do so is derived from “the good People of these Colonies”.

We also read in the Declaration of Independence:

“Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

Article 7 of the US Constitution says “done in Convention by the Unanimous Consent of the States present”.

The states cannot be forced to participate in the Union against their consent, and without that consent, it has no “just powers”.

If at any time, a state, or the people of a state, cease to “consent” to be governed by the Federal Government, then the Federal Government no longer has any “just powers” to govern them.


The US Recognized Texas Right to Secede from Mexico

From 1821 to 1836 Texas was part of Mexico, but in 1836 the Republic of Texas seceded from Mexico.

On March 3, 1837, US President Andrew Jackson appointed Alcée La Branche as American “chargé d'affaires” to the Republic of Texas, thus officially recognizing the independence of the Republic of Texas and therefore recognizing its right to secede from Mexico.

On February 28, 1845, the US Congress passed a bill that would authorize the United States to annex the Republic of Texas.  This act also demonstrated that the United States recognized the right of Texas to Secede from Mexico in 1836.

If there is no unalienable right of secession, then the USA would be obligated to turn Texas back over to Mexico to be reannexed into that country.

The US Recognizes its own right to Secede from Great Britain

We have already discussed the Declaration of Independence.  It scarcely bears mentioning here that the United States maintains and recognizes the right of the Thirteen Colonies to Secede from Great Britain in the first place, otherwise the United States itself would have no right to exist, and should be re-annexed into Great Britain.


The Intent of the Founders

In interpreting the Constitution, one very important factor is that of the intent of the founders.  Of course it is impossible to believe that the founders understood the Constitution in a way that would conflict with the Declaration of Independence, as the “founders” in broad terms, composed and signed both documents.

In fact the Declaration of Independence was composed by Thomas Jefferson.  

Thomas Jefferson

Jefferson addressed the issue in a letter to William B. Giles on Dec. 26, 1825 marked “not intended for the public eye,” Jefferson wrote that states:

“…should separate from our companions only when the sole alternatives left, are the dissolution of our Union with them, or submission to a government without limitation of powers.  Between these two evils, when we must make a choice, there can be no hesitation.”

Clearly the founders did not understand the Constitution as prohibiting the States from exercising their unalienable right of secession.  

The Civil War

The so-called “Civil War” opens a protracted discussion into numerous unconstitutional acts which took place in this dark time of American History.  This is far to protracted of a discussion for this short paper (perhaps some day I will write more extensively on this topic), suffice it to say that no “war” was ever declared by congress, and the so-called “Civil War” was an Executive action which ultimately resulted in the forced annexation of the Southern States.  As the Constitution lays out exactly how a state may be annexed, and it cannot be by force, this was the unconstitutional outcome of an unconstitutional Executive action.  (I should state here my absolute disdain for the institution of slavery, the relation of which to the so-called Civil War has been greatly misunderstood).


Conclusion

States of the United States, and the State of Texas in particular, have an unalienable right to secede granted by the Creator and recognized explicitly in the Declaration of Independence, and implicitly in the Constitution and clearly was the understanding of the Founders.  The right of secession has been repeatedly recognized by the United States in its own secession from Britain, and in its own recognition of Texas right to secede from Mexico.  The right to secede is inalienable and cannot be given up or taken way.