Can Texas Secede from the Union?
By
James Scott Trimm
In recent years Scotland has voted itself independent, and Britian has voted itself out of the European Union. If there can be a Brexit, why not a Texit?
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).
The Texas State Constitution
Most importantly the Texas State Constitution states that "the
perpetuity of the Union" we have with the United States depends "upon
the preservation of the right of local self-government, unimpaired to
all the States", that "All political power is inherent in the people"
who "...have at all times the inalienable right to alter, reform or
abolish
their government in such manner as they may think expedient."
FREEDOM AND SOVEREIGNTY OF STATE. Texas is a free and independent
State, subject only to 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.
(Article 1 Section 1)
INHERENT POLITICAL POWER; REPUBLICAN FORM OF GOVERNMENT. All
political power is inherent in the people, and all free governments are
founded on their authority, and instituted for their benefit. The faith
of the people of Texas stands pledged to the preservation of a
republican form of government, and, subject to this limitation only,
they have at all times the inalienable right to alter, reform or abolish
their government in such manner as they may think expedient.
(Article 1 Section 2)
In other words the right to secede was written into our new State
Constitution, and we rejoined the union with a contingency that we could
legally secede in the future!
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, and is stated in our state
constitution.
