You might already be aware of House Bill 1359, which aims to put an independence referendum on the ballot for Texans this November. A few members of the Texas legislature have claimed that TEXIT is unconstitutional, while most have been studiously silent on the issue. It is often the case that the detractors of TEXIT offer no explanation of their stance, apart from saying that the War Between the States settled the issue of secession. Given these facts, I think the legality of secession deserves a concise overview:
1, The Declaration of Independence, upon which rests the moral and legal justification for the United States’ existence, asserts that
“When a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce [mankind] under absolute Despotism, it is their right, it is their Duty, to throw off such Government and to provide new Guards for their future Security.”
Anyone who repudiates this principle is repudiating the existence of the United States.
2. The U.S. Constitution was not ratified by the people of the United States in the aggregate, but by the people of the individual States, each composing a sovereign political community. The U.S. Constitution recognizes no such community as “the people of the United States in the aggregate;” it recognizes the sovereign States alone.
3. Each State withdrew from the Articles of Confederation when it ratified the U.S. Constitution. Article VII of the Constitution states that
“The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”
Article VII therefore endorsed the dissolution of the Union. In fact, the Constitution went into effect with the ratification of only eleven States. North Carolina was outside of the Union for eight months after the Constitution had gone into effect, and Rhode Island was outside the Union for fourteen months. This legal dissolution of the Union furnished a precedent for the future.
4. The U.S. Constitution is a contract between free States, each “considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act,” to quote James Madison, the Father of the Constitution. Anyone who claims otherwise is ignoring the well-documented history of the Constitution’s ratification, and endorsing a Union held together by coercion.
5. The War Between the States did not “settle” the issue of secession. Military conquest cannot settle an issue of constitutional law any more than a sledgehammer can write a book. Anyone who invokes the Union’s victory as an argument against TEXIT is attempting to shut down dialogue, either by muddying the waters or by intimidating Texans.
6. Sovereignty belongs exclusively to the people of each State, and cannot belong to any government. The sovereignty of a people is the source of their government’s lawful authority, and the federal government derives its authority from the people of the individual States. The States never surrendered, transferred, or abridged their sovereignty because they never ceased to be the source of the federal government’s lawful authority.
7. The right of secession from the Union is an attribute of State sovereignty. The States undeniably exercised the right to leave the Union when they decided to withdraw, one by one, from the Articles of Confederation. At no point since have they surrendered this right. It is therefore clear that they still possess it.
8. Texas reserves the right of secession in Article I, Section 2 of its own Constitution:
“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.”
The United States’ decision to admit the Republic of Texas into the Union, with this proviso in place, was an implicit acknowledgment of Texas’ right to secede.
9. The Tenth Amendment of the U.S. Constitution states that
“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.”
Article I, Section 10 of the U.S. Constitution gives a comprehensive list of things that a State cannot do. Secession is not on the list. The States therefore reserve this right. Moreover, Article I, Section 8 of the U.S. Constitution gives a comprehensive list of the powers of Congress. The power to stop a State from leaving the Union is not on the list. The federal government therefore has no authority to stop a State from leaving the Union.
10. The common agent of the States, the federal government, has assumed countless powers not enumerated in Article I, Section 8. This fact means the federal government is in violation of the Tenth Amendment, is acting in bad faith, and is giving each State a good reason to exit the compact.
11. The Second Amendment of the U.S. Constitution states that
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Congress infringes upon the right of Texans to keep and bear arms by mandating federal background checks, which enable the ATF to compile a database of nearly all law-abiding gun owners in the U.S. Ask yourself: why do they want this information? Congress is also working on a national red-flag law, high-capacity magazine ban, “assault weapons” ban, and online sales ban for guns and ammo.
12. The Fourth Amendment of the U.S. Constitution states that
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
The federal bureaucracy routinely conducts unwarranted surveillance on Texans, and has weaponized its law enforcement agencies against prominent conservative figures, such as Donald Trump and Rudy Giuliani. The federal government is therefore behaving in a manner more suitable for a third-world dictatorship than for a constitutional republic, and is in violation of the Fourth Amendment.
13. Article IV, Section 4 of the U.S. Constitution states that
“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion.”
The United States have a President who was not lawfully elected, and a Supreme Court that neglected its duty under Article III, Section 2 to hear Texas’ lawsuit against Georgia, Pennsylvania, Wisconsin, and Michigan. The United States therefore no longer have a “Republican Form of Government.” Moreover, this unlawful government neglects its duty to protect Texas against invasion, and is therefore in double violation of Article IV, Section 4.
Imagine this scenario: thirteen partners hire an agent to represent them. They draw up a contract specifying the obligations and limitations of their agent. As time goes by, more partners join the contract, eventually reaching fifty partners and one agent. The agent becomes so arrogant that he starts acting without the consent of the partners who hired him in the first place. He violates the contract repeatedly, to the detriment of his employers, by assuming powers that the contract never vested in him, and by ignoring obligations that the contract assigned to him. Most of the employers are unhappy about their agent’s behavior, but one of them, Mr. Texas, is especially disgruntled. Can Mr. Texas withdraw from the partnership that he voluntarily acceded to? Perhaps not, if he had waived his right to secede. But, after an exhaustive search of the archives, it becomes clear that Mr. Texas never waived his right to leave, at any point.
There is not a single valid reason why Mr. Texas cannot legally leave.
Scott Dragland is a freelance author, and a student of American history and constitutional law.