DRAGLAND: The Constitutionality Of A Texas Secession

Editor’s note: This is the second chapter of a new book by Scott Winston Dragland, titled Let My People Go: Why Texas Must Regain Its Independence. It is for sale on Amazon.

The Northeast Megalopolis, which stretches from Boston to Washington, D.C., has about 50 million inhabitants. The Southern California corridor, which runs from Los Angeles to San Diego, has about 20 million inhabitants; the Bay Area, which encompasses San Francisco, Oakland, and San Jose, has another 10 million.[1] Many of these people do not believe in Americanism. Instead, they are passively receptive to neo-Marxist propaganda, and vote accordingly. Why should these people have any say in how Texas is governed? They shouldn’t, but they do. Why should these people have any say in whether or not Texas leaves the Union? They shouldn’t—and they don’t.

Any State can leave the Union, at any time, for any reason. Texas is the best positioned and the best prepared to leave. The size, economic prowess, and most of all, the unique cultural and historical heritage of Texas should lend Texans the strength of heart to declare independence. Pioneers loaded all of their worldly possessions into wagons and headed to Texas. They risked their lives for the chance to own land and live free. Will the Texans of today take action to defend their freedom, or will they sit on their couches and watch the death of America unfold in real time on television? Texans have a choice: an ignominious surrender to the tyrannical Federal Government, or an independent Texas free to shape its own future. Leaving the Union will be neither easy nor safe. Remaining in the Union would be easier, but it would result in the slow, steady demise of freedom. People who live in totalitarian regimes are only safe when they live in submission.

Since many conservatives mistakenly believe that secession is not constitutional, we must review the primary reasons why secession is, in fact, constitutional.

1. Texas reserves the right of secession in Article I, Section 1 of its own Constitution:

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.

The perpetuity of the Union is not unconditional; it is conditional upon the unimpaired right of local self-government. Furthermore, Article I, Section 2 of the Texas Constitution provides that

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.[2]

Because the Federal Government operates in Texas, it is subject to the right of Texans to “alter, reform, or abolish their government.”

2. 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 assertion repudiates the legality of the United States’ existence.

The foundational principles of Limited Government, Unalienable Rights, and the Rule of Law form the bedrock of the Federal Government’s legitimacy, or right to rule. If the Federal Government violates these principles, it divests itself of its own lawful authority. Consequently, it is the right and duty of the people “to throw off such Government, and to provide new Guards for their future security.” Accordingly, it is the right of Texas to throw off the Federal Government in a peaceful, lawful manner.

3. 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 Constitution recognizes no such legal entity as the people of the United States in the aggregate; it recognizes the sovereign States alone. To quote James Madison in Federalist 39, “this assent and ratification [of the Constitution] is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong . . . The act, therefore, establishing the Constitution, will not be a national, but a federal act.”[3] [Emphasis in original].

4. The 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 in Federalist 39.[4] If the States cannot peacefully secede, then they are in a Union held together by coercion.

5. 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. Rather, the States agreed to refrain from exercising a few of their sovereign powers, and authorized the Federal Government to exercise those powers on their behalf. A State can resume the exercise of those delegated powers at any time it sees fit, by leaving the Union.

6. Article VII of the Constitution provides 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.” In fact, the Constitution went into effect, in March 1789, with the ratification of only eleven States.[5] North Carolina was outside of the Union for eight months after the Constitution had gone into effect,[6] and Rhode Island was outside the Union for fourteen months.[7] Article VII enabled States that had previously been inside the Union to have a legal existence outside of the Union. This means that the Constitution itself made allowance for the dissolution of the so-called “perpetual Union.”

7. The right of secession from the Union is an attribute of State sovereignty. The original thirteen 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. Because every State is equally sovereign, the States which acceded to the Union after the ratification of the Constitution also have the right of secession.

 8. The Constitution’s prohibitions are absolutely binding on the Federal Government, since the Federal Government has no lawful authority apart from that which the Constitution bestows upon it. The lawfulness and authority of the Federal Government are conditional upon its adherence to the Constitution. It has no intrinsic authority of its own. With this in mind, consider the Tenth Amendment: “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 8 of the 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. Congress therefore has no authorityto stop a State from leaving the Union.

9. The main purpose of the Constitution is to define the responsibilities and limitations of the Federal Government; it imposes only a few specific limitations on the States. 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.

10. The Civil War 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. Besides, the current circumstances are vastly different than they were in the 1860s. We are not trying to re-establish the Confederacy. We want to safeguard the promise of America. We are not abandoning America; the Federal Government has abandoned America.

11. Congress has passed countless statutes not authorized by Article I, Section 8 of the Constitution, which are therefore in violation of the Tenth Amendment. By violating the Constitution, Congress attacks the foundation upon which it is built, and has eroded its own legislative authority to the point of annihilation.

12. The Fourth Amendment of the Constitution provides 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.[8] 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 Constitution provides 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 Federal Government neglects its duty to protect Texas against invasion.

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, there are fifty partners and one agent. The agent becomes so arrogant that he acts 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 with their agent, but one of them, named Texas, is especially disgruntled. Can Texas withdraw from the partnership that he voluntarily acceded to? Perhaps not, if he had waived his right to leave. But, after an exhaustive search of the archives, it becomes clear that Texas never waived his right to leave, at any point. There is not a single valid reason why Texas cannot legally leave the Union.

But what about Texas v. White (1869)? The issue at stake in this case was whether Texas, as a Confederate State, had the lawful authority to sell 135 of its U.S. Treasury bonds to George White and John Chiles. Texas’s reconstruction government, under the command of General Philip Sheridan, argued that the bonds were still the property of the State of Texas, claiming “they were seized by a combination of persons in armed hostility to the government of the United States.”[9] Chiles argued that Texas was not a State when its reconstruction government brought the suit against him and White (in 1867), because

The State, having severed her relations with a majority of States of the Union, and having by her ordinance of secession attempted to throw off her allegiance to the Constitution and government of the United States, has so far changed her status as to be disabled from prosecuting suits in the National Courts.

The Chief Justice, Salmon P. Chase, reasoned that the Supreme Court could not have original jurisdiction under Article III, Section 2 unless Texas was legally a State when it brought the lawsuit against Chiles and White. Again, this happened after the war had ended. To establish that Texas was a bona fide State in 1867, Chase claimed that Texas “did not cease to be a State [during the war], nor her citizens to be citizens of the Union.” He claimed that the Union was perpetual and indissoluble, and declared that Texas’s 1861 “ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law.”[10]

The question of jurisdiction arose from the defendants’ argument that Texas was not a State in 1867. This was the issue before the Court—not whether Texas was a State in the Union between 1861 and 1865. Chase proclaimed that Texas had never left the Union. This was intellectually dishonest. Did Texas have Senators and Representatives sitting in Washington, D.C. during the war? Did it participate in the presidential election of 1864? How could the Confederate States be fighting the United States, on the field of battle, if they were simultaneously members of the United States? This case exemplifies the fallacies and linguistic acrobatics that Supreme Court Justices specialize in.

The doctrine of the perpetual Union derives from the Article XIII of the Articles of Confederation, which provided that “the articles of this confederation shall be inviolably observed by every State, and the Union shall be perpetual.”[11] The Articles of Confederation ceased to be law in 1789. In the same year, North Carolina and Rhode Island ceased to be members of the Union, because they had not yet ratified the U.S. Constitution. Hence, the Union was no longer a “perpetual Union”—neither in law, nor in fact. Texas acceded to the Union fifty-six years after the doctrine of the perpetual Union had ceased to be law.

Another important point is that the Constitution does not vest the Supreme Court with the authority to forbid secession. To quote James Madison in the Virginia Resolutions,

[The Virginia] Assembly doth explicitly and peremptorily declare, that it views 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 farther valid than they are authorised by the grants enumerated in that compact.[12] [Emphasis added].

Suppose that Texas holds a referendum on whether Texas should peacefully withdraw from the Union, and Texans vote to leave. This would be a sovereign act of a sovereign State. If that happens, it is conceivable that the Supreme Court might forbid Texas from leaving. Do nine Supreme Court Justices have the power to negate the will of the Texan people? No, they do not. The States have not vested them with this authority.

 

[1] Florida, Richard. The Real Powerhouses That Drive the World Economy. (Bloomberg.com)

[2] Statutes.Capitol.Texas.gov

[3] Hamilton, Madison, and Jay. The Federalist Papers (Number 39). (Coventry House Publishing).

[4] Ibid

[5] Lawson, Gary. When did the Constitution Become Law. (Scholarship.Law.ND.edu)

[6] Ratification of the Constitution by the State of North Carolina November 21, 1789. (Constitution.org)

[7] Ratification of the Constitution by the State of Rhode Island; May 29, 1790. (Avalon.Law.Yale.edu)

[8] Wulfsohn, John A. FBI raids home of Project Veritas’ James O’Keefe as part of investigation into Ashley Biden’s ‘stolen’ diary. (FoxNews.com)

[9] Texas v. White et al. 74 U.S. 700 (1869). (Law.Cornell.edu)

[10] Ibid

[11] Articles of Confederation—1777. (USCode.House.gov)

[12] Madison, James. Virginia Resolutions, 21 December 1798. (Founders.Archives.gov)

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