Texas Secession Might Have Some Legal Standing [Op-Ed]

Patrick Frye

Commentary | The Texas secession movement is gaining steam through a White House petition. A question quite often raised is whether it is even legal for a state, such as Texas, to secede from the Union. I'm not going to consider whether or not Texas, or any other state, should secede from the Union, but I do want to know if they can.

Texas State Representative Charles Perry claims that the truth is Texas cannot legally secede. "It's not legal contrary to public opinion," Perry said. "Texas can not secede legally. We gave up that right at the end of the civil war; it was part of becoming the union."

At first I thought that was the end of the question. I do know the Texas annexation documents don’t authorize Texas the right to secede, which is a reoccurring myth. But then I decided to read the original Supreme Court opinion on Texas v. White written in 1869. The Supreme Court judges of that era wrote that "[t]he Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States." A quirk comes in at that the Supreme Court also allows for the possibility of state secession "through revolution, or through consent of the States."

Why the specific phrasing "through the consent of the states?" It turns out this last attempt at Texas secession began at a convention hosted by those supporting the idea that Texas should join the Confederacy. This was not done with the permission of the United States Federal government or other states, and not all of the Texas state government members supported the Texas secession movement.

In fact, according to the Supreme Court opinion, the Texas "governor and secretary of state, refusing to comply, were summarily ejected from office." The other reason the Texas secession was rejected was because of a legal distinction:

"It is not to be questioned that this court has original jurisdiction of suits by States against citizens of other States, or that the States entitled to invoke this jurisdiction must be States of the Union. But it is equally clear that no such jurisdiction has been conferred upon this court of suits by any other political communities than such States. If, therefore, it is true that the State of Texas was not, at he time of filing this bill, or is not now, one of the United States, we have no jurisdiction of this suit, and it is our duty to dismiss it."
"In the Constitution, the term "state" most frequently expresses the combined idea just noticed, of people, territory, and government. A "state," in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed. It is the union of such states, under a common constitution, which forms the distinct and greater political unit which that Constitution designates as the United States, and makes of the people and states which compose it one people and one country."

The convention decided that an "ordinance should be submitted to the people, for approval or disapproval, on the 23d of February, 1861" but then they went ahead with the Texas secession anyway. "During the whole of that war, there was no governor, or judge, or any other State officer in Texas who recognized the National authority. Nor was any officer of the United States permitted to exercise any authority whatever under the National government within the limits of the State except under the immediate protection of the National military forces."

But then the Supreme Court judges give their opinion that when "Texas became one of the United States, she entered into an indissoluble relation" since "[t]he Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States." That seems rather rock solid but then comes the caveat:

"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."

Thus when Texas attempted to secede during that time it was considered an illegal attempt by rebels within the United States. The Confederate government is not acknowledged as legally existing. When the Civil War ended they contend that no official Texas government was functioning, so it was the duty of the United States to rebuild a republican government in Texas.

It is then stated that the US Federal Congress has the authority to decide these matters: "Under the fourth article of the Constitution, it rests with Congress to decide what government is the established one in a State. For, as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not."

A further caveat adds another layer to the complexity of an attempt at a Texas secession: "Nothing in the case before us requires the court to pronounce judgment upon the constitutionality of any particular provision of these acts." So, technically, it sounds like this legal opinion cannot serve as a precedent for a Texas secession where everyone agrees to the act.

The rest of the opinion focuses on issues, like slavery, primarily relevant to the end of the Civil War and not state secession in general.

So I raise this question: What happens if a legally recognized Texas state government goes before the US Federal Congress and all states pass a bill allowing for Texas to secede from the Union? When the Supreme Court says "consent of the states" I presume they mean all of the states, which requires an unanimous decision. I find this scenario extremely unlikely but, at least in my reading of the Supreme Court opinion, it does seem allowable only in regards to this opinion. I would not be surprised if there is other legal precedent I'm unaware of. Some websites claim there is no law specifically allowing for or forbidding secession.

What do you think about the legality of a Texas secession?