Texas and Secession: Brief Introduction to Legal Issues

There has been a lot of talk these past several days about Texas secession in the news, and since this topic is interesting to me, here is a brief introduction to some of the legal and historical issues surrounding the question of Texas secession, with some links to pertinent documents. The opinions herein, are of course my own.

Rasmussen has a poll out which might be some comfort to those thinking that they’re cooler heads and that secession is a lame-brained idea. According to Rasmussen:

Thirty-one percent (31%) of Texas voters say that their state has the right to secede from the United States and form an independent country.

However, the latest Rasmussen Reports poll in the state finds that if the matter was put to a vote, it wouldn’t even be close. Three-fourths (75%) of Lone Star State voters would opt to remain in the United States. Only 18% would vote to secede, and seven percent (7%) are not sure what they'd choose.

That would seem to settle the issue pretty definitively, unless one considers the context. We’re being told that 31 percent of the Texas population thinks that Texas has the right to leave if it wants, and 18 percent would actually do it in circumstances where there has been no organized agitation for secession, and no political party or faction pushing for it. How would these numbers look if there was a serious independence movement here, and not a few cranks?

Other commentators opine that the Civil War settled the issue, and the crushing of the Confederacy establishes that Texas, or other states, have no right to secede. Poppycock. The war had nothing to do with settling the existence or non-existence of a legal or moral right for a state to leave the US. For that matter, neither did Texas v. White, 74 U.S. 700 (1869), the Supreme Court case (the majority opinion written by Lincoln's former Treasury Secretary, Chief Justice Salmon P. Chase) that purported to settle it later.

The right to secede is a political question, inherent in the concept of government by consent of those governed, and the right of people to determine their own governing institutions. The states pre-dated the Federal government, their citizens delegated power to it, and can resume it. Texans have as much of a moral and legal right to secede from the US as the colonies did to leave Great Britain.

The only real questions are whether they want to do so badly enough, and then have the power to make it good. If, say, Vermont (which actually has some kind of secessionist movement, unlike Texas) someday votes to pull itself out of the Union, I cannot imagine that Americans would actually, in the modern world, tell Vermonters they had to stay in a union they didn't want to remain a part of, much less use force to make them do so.

On the other side of the coin, there has been some loose talk about an urban legend that claims that the US Congress’s Joint Resolution, and the Texas Convention's Ordinance of Annexation, bringing Texas into the United States in 1845 reserved Texas the right to secede later. This is completely mistaken.

Texas rejected a treaty of annexation. Bringing Texas into the United States was accomplished by a Joint Resolution of the US Congress, and an Ordinance of a special convention in Texas. Neither the US Joint Resolution, nor the Texas Ordinance, address the issue of secession at all. Texas did reserve the apparent right to divide itself into other states, which has been proposed at various times, and which would today probably produce a bunch more Republican Senators, and possibly a couple of Democrats.

Provision for division was made, but inclusion of specific language on secession in either the US or Texas documents would have surely killed US support for annexation. Southerners and others supporting the admission of Texas to the US would never have called into question for their own states a right they maintained was already inherent in statehood by giving it specifically to Texas. When Texas left the United States in early 1861, it did so by means of another State convention and another Ordinance (later approved by the voters) that simply repealed the Texas Ordinance of Annexation of 1845.

Further, I'm not sure the mechanisms allowing Texas to divide itself into more states are worth the paper they’re written on – considered as either statutory law or as some sort of treaty, the analysis is the same. In the United States, both treaties and statutes can be changed and modified by subsequent Congressional legislation. This is true of treaties even if the change amounts to a “violation” of the treaty. Even assuming Texas had some kind of "treaty" allowing it to divide itself, the international position of the US on such a treaty is a political matter, to be resolved between sovereign governments. Texas, unless it secedes and makes it stick, is not sovereign. As far as American law is concerned, the last action in time controls. Congress could quite legally pass a statute and tell Texas it could NEVER split – at least if it split within the union.

Reconstruction muddied all these murky waters still further. Under the Union theory of the law (Lincoln's specifically) Texas and the other Confederate States never left the Union, they simply got themselves out of proper relations with it. Therefore, the provisions allowing Texas to divide might still be operative, if no subsequent statute changed them.

This would be the case even under Congressional reconstruction, which, unintentionally, implicitly acknowledged the validity of secession by treating the former Confederate States as "conquered provinces” and later making them go through a process of re-admission to the Union. However, Congress insisted on one further wrinkle – before Texas could re-enter the Union -- it was forced to produce yet another Ordinance, by yet another convention (15 March 1866), declaring secession in 1861 null and void, and renouncing the right in future.

The 1866 Ordinance is really no impediment to secession either, since a further convention could simply repeal this Ordinance also -- just as the 1861 convention repealed the Ordinance of Annexation. Probably none of this will ever happen, but the right of the people of a state to resort to secession is implicit in the entire concept of republican institutions, ordered liberty, and self-government. Whether secession can be successful is more a question of popular will and raw power than it is of law.