Is There Anything to the Claim that Texas Can Secede?
By Clayton E. Lust
Mr. Lust is a PhD Candidate in history at the University of Houston.
Texas cannot secede from the United States. Rick Perry is wrong. Ron Paul is wrong. All of the teabaggers (hilarious by the way) are wrong. First and foremost, the United States and the Confederate States fought a little war in the 1860s. While the cause of rupture was the protection of slavery, a point of contention from a political standpoint was can you secede simply because you don't like the government duly elected. When Robert E. Lee surrendered on April 9, 1865, that question from a practical standpoint was answered. Anti-slavery, pro-free wage labor, pro-capitalist, pro-Union policy prevailed.
Nonetheless, it took a Supreme Court decision four years later, Texas v White, to settle this from a legal standpoint. In that case, dealing with whether bonds had been transferred illegally by the government of the Confederate States, in an attempt to stay clear of federal involvement, one of the defendants (John Chiles) claimed that the Supreme Court did not have jurisdiction, because Texas was no longer a state but essentially a conquered province. Salmon Chase, the chief justice of the United States Supreme Court wrote the majority opinion (one that disagreed with Chiles) and said in part:
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?
Chase continued that by incorporating itself into the United States, Texas could not claim that they had formed "a compact," but rather they were part of that indissoluble body. In short, there is no such thing as "a compact" and secession was (and is always) counter to the laws of the United States. This standard was upheld in 1905's so called insular cases - essentially states that were brought in via treaty, conquest, or agreement, were subject to the same law - once they are duly incorporated, secession is off the table. Period.
The supporters of Texas secession, most significantly Perry, have pointed to Texas State Constitution of 1845 as a rationale. At a "teabag" protest in front of the Alamo on April 16, Perry said, "When we came into the Union in 1845, one of the issues was that we would be able to leave if we decided to do that." His supporters hollered and screamed their approval. The problem is, they are all wrong. Brutally wrong. There is nothing in the 1845 Constitution that says Texas may leave if dissatisfied. But let's give the chowderheads the benefit of the doubt and assume that on the basis of the preamble* you could (sort of) see where they might have gotten this misguided notion. It would be all well and good if Texas were actually governed under the provisions of the 1845 Constitution. The problem is we're not. After that little war in the 1860s I referred to earlier, Texas had to write a new constitution in 1876, which is the guiding document. And, here's the
surprise - it too says nothing about the right to secede. One would think that the governor of Texas would know under which document he governs. But maybe that is expecting too much.
Aside from the governor not knowing his own state law, two other points argue against this notion of the 1845 Constitution allowing secession. The doctrine of acquisitive prescription (cited in the so-called insular cases) runs counter to Perry's claims, as Texas transferred its sovereignty to the United States. Similarly the principle of estoppel would also run counter to the idea of secession. Texas desired statehood from the moment it seceded in 1836 (this time from Mexico), supported and encouraged by Sam Houston. While many Texans point with pride to the nine-year republic period, they conveniently forget that in 1837, the Texas minister plenipotentiary, at the direction of the Texas legislature made application to the United States for annexation. The US rejected this application, but made it clear to the minister, Memicun Hunt, that it was solely because Texas technically remained at war with Mexico, and that once this were resolved, the path to
statehood was open. Texas once again went down this road in 1838, as former President John Quincy Adams filibustered the annexation and killed the prospect of Texas statehood. Only then did Texas resign itself to being a republic for the time being (for reference see "The Speech of John Quincy Adams of Massachusetts, upon the Right of People, Men, and Women, to Petition on the Freedom of Speech and Debate in the House of Representatives of the United States; on the Resolutions of Seven State Legislatures, and the Petitions of More than One Hundred Thousand Petitioners, Relating to the Annexation of Texas to this Union"). At issue here is the following: Texas desired statehood, moved to accomplish statehood, and ultimately attained statehood. Texans can't claim now in 2009 (just as they couldn't in 1845, or in 1861, or at any other point) that they did not wish to be a state under the U.S. Constitution, or the U.S.'s "rules" more generally.
Finally, the principles of these proponents of secession have already unraveled. Never mind that all of this recent talk of secession began as a protest against federal interference in the form of economic stimulus dollars. The Texas governor and legislature all stood unified, saying we will not accept federal interference, promising that they would hate to discuss it, but secession was certainly on the table. Apparently their principles vanished. On April 17 (2 days later!) the Texas House unanimously passed a $178.4 billion budget that contained a $10 billion shortfall offset by -- wait for it -- the federal stimulus package. Speaker Joe Straus said of the apparent contradiction, “I’ve been critical of the stimulus approach from Washington, but I have to say that it is helping us balance our budget” (Houston Chronicle, “Texas House Unanimously Okays $178.4 Billion Budget Plan,” 18 April 2009).
So can we please get a grip? I understand that the Republicans are upset that President Obama is “forcing” them to accept a stimulus package with which they disagree. Whether those of us on the left like it or not, the job of the opposition party is to oppose. And there should be no problem with opposing. Political conservatives lost, and that’s all there is to it, just like the "liberals" lost in 2000 and 2004. But get over it -- create an agenda. Focus on policy. Fix your own house. Oppose all you want. But stop with the secession talk. It is over -- it's counter to the law and the people proposing secession have already sold their principles to balance the budget.
*"We, the people of the republic of Texas, acknowledging with gratitude the grace and beneficence of God, in permitting us to make a choice of our form of government, do, in accordance with the provisions of the joint resolution for annexing Texas to the United States, approved March first, one thousand eight hundred and forty-five, ordain and establish this constitution."