Those opposed to Texas becoming an independent nation love to reach into their bag of misinformation and claim that it’s illegal for Texas, or any State, to leave the union. It’s time to set the record straight on Texit and show them to be either misinformed or liars of the highest order.
The following is an excerpt from the book TEXIT: Why and How Texas Will Leave The Union by Daniel Miller. Pick up a copy of this book that will answer all of your TEXIT questions and help you destroy the lies and myths perpetuated by those who are opposed to it.
A common accusation by those opposed to Texit is that the act of leaving the Union is illegal. Let’s be clear. An accusation of the commission of an illegal act implies that those committing it are criminals guilty of a criminal act. Therefore, this is not a light accusation.
When pressed, however, no one seems to be able to point to a specific law that forbids it. Scouring the federal statutes produces no joy for the accuser as there is no law that explicitly forbids any State from asserting its independence. Given the passion with which this accusation is leveled, if it is not found in federal law, then surely it must exist in Texas statute. After all, the State of Nevada included one of the most strongly worded prohibitions on secession in its state constitution.
“But the Paramount Allegiance of every citizen is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States; and no power exists in the people of this or any other State of the Federal Union to dissolve their connection therewith or perform any act tending to impair, subvert, or resist the Supreme Authority of the government of the United States.”
However, there is no corresponding constitutional or statutory prohibition in Texas law, either.
It is a fundamental principle of American jurisprudence that something is illegal only if there is a law forbidding it. This is known as the legality principle, expressed in Latin as “nullum crimen sine lege, nulla poena sine lege,” meaning “no crime without law, nor punishment without law.”
Paul H. Robinson, one of the world’s leading criminal law scholars, described its modern application in 2005.
“In its modern form it means that criminal liability and punishment can be based only upon a prior legislative enactment of a prohibition that is expressed with adequate precision and clarity. The principle is not a legal rule, but rather a legal concept embodied in a series of legal doctrines.”
If no law specifically prohibits a State from leaving the Union, then there must be some other law which, in their minds, applies in this instance. When pressed further, the accusation shifts to that of treason.
The term treason has become an increasingly popular charge in this divisive political climate. While Texit advocates are the recipients of it at a higher than average rate, it has become far more common in federal partisan wrangling. Obama was accused of treason over the Iran nuclear deal and Trump has been accused of treason for his alleged ties to the Russian government. However, those who seem to be quickest to use the term seem to be most clueless as to its meaning.
Drawing from an English statute from 1351 that was created to limit the scope of treason, the framers of the United States Constitution included a specific definition in Article 3, Section 3, which stated that, “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”
Recognizing that accusations of treason were often the tool of tyrants, James Madison explained the necessity to clearly define it in Federalist 43.
“As treason may be committed against the United States the authority of the United States ought to be enabled to punish it: but as new tangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free governments, have usually wreaked their alternate malignity on each other, the Convention has with great judgment opposed a barrier to this peculiar danger by inserting a Constitutional definition of the crime.”
Treason is a criminal act committed by an individual, not a political body and, therefore, cannot be committed by a State. To continue to level the charge of treason, one must believe that the entirety of the population of Texas who would vote in support of Texit would be individually guilty of treason. This, however, completely ignores the constitutional definition of treason.
Such a vote is not levying war against the United States unless one considers casting a ballot as an act of war. Nor is it adhering to or giving aid and comfort to an enemy of the United States. If so, who would that enemy be? An enemy of the United States is someone who has been declared as such by the United States Congress, generally through a formal declaration of war. In this instance, North Korea might perhaps fit the bill, since the Korean War was never formally concluded.
According to Carlton F.W. Larson, a professor of law at the University of California at Davis, “Certain nonstate actors can also count as enemies, and terrorist groups such as al-Qaeda and the Islamic State probably fit the definition.”
Adhering to the enemy would mean that voting for Texit was, in fact, joining North Korea or the Islamic State. Giving aid and comfort would mean that voting for Texit was, in fact, providing concrete and material support to the same. Neither of these apply.
When confronted with the lack of basis for the charge of treason, the final charge is that of attempting to overthrow the government. In fairness, there is a federal statute in Title 18 of the U.S. Code that outlaws attempts to do that very thing. In its entirety, it reads:
“Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or
Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or
Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof
Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.”
The operative words in the statute are “force or violence” and, given that a Texit, initiated by a legal process, ratified by a vote of the people of Texas, and secured by a declaration of the reclamation of the right of self-determination, is neither force nor violence, this accusation falls as well.
Once the argument of illegality lies in ruins, the fallback position is to loudly declare that it is unconstitutional for a State to leave the Union. However, the accusation of unconstitutionality shares a fundamental and fatal flaw with the accusation of illegality. There is not a single clause in the Constitution of the United States that forbids Texas, or any State, for that matter, from leaving the Union. In this case, the constitutional silence is extremely important.
The Constitution of the United States, in fact, actually defines the specific acts States are forbidden from committing in Article 1 Section 10.
“No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
“No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.
“No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”
Nowhere in the remainder of the Constitution is the issue of a State leaving the Union explicitly forbidden nor is power ceded to the federal government to prohibit one from doing so. In this silence, the Tenth Amendment to the Constitution rings loudly.
“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.”
This deafening constitutional silence, coupled with the definitive reservation of power by the States, leaves the decision to the people of a State and to those people alone.
“Not so fast!” say the critics. “What about the Supreme Court case of Texas v. White? Didn’t that say that secession was unconstitutional?”
The entire legal argument for the unconstitutionality of States leaving the Union rests on the Supreme Court’s decision in the 1869 case of Texas v. White. However, when it comes to Texas v. White, more and more academics are adopting the stance of historian Dr. Brion McClanahan. When asked that very question at an academic conference in Florida, his response was an indignant, “So what?”
Dr. McClanahan’s attitude toward Texas v. White is not based on a denial of facts. In fact, contrary to the concrete pronouncements by Texit detractors, the decision in Texas v. White has been debated and debunked extensively starting from the moment Chief Justice Salmon P. Chase issued the majority opinion.
The dissenting opinion, issued by Justice Robert C. Grier, highlighted many of the deficiencies of the Supreme Court’s ruling, stating that he disagreed “on all points raised and decided.” The assertions made by Chase were so offensive to his contemporaries that Union and Confederate sympathizers, both fresh from the battlefields and still harboring deep divisions, were united in their contempt for his ruling.
Bristling at the usurpation by the judiciary of the power to determine political questions, Lyman Trumbull, a United States senator from Illinois, introduced legislation that, in part, stated, “under the Constitution, the judicial power of the United States does not embrace political power, or give to judicial tribunals any authority to question the political departments of the Government on political questions.”
There is no doubt that Chief Justice Chase, an appointee of Abraham Lincoln, used the opportunity presented by Texas v. White to stamp a retroactive “seal of approval” on the federal government’s policies and actions during the Civil War. To do so, Chase had to rewrite history and virtually all established law on the subject.
To reinforce his belief that the United States was a “perpetual union,” he had to assert the ludicrous argument that the United States Constitution was merely an amending document to the previous Articles of Confederation, citing the Preamble to the Constitution. He then had to ignore that it only took 9 States of the original 13 to ratify the Constitution of 1787 and that, had less than 13 States ratified, it would have destroyed the “perpetual union” allegedly created by the Articles of Confederation.
To reinforce his assertion that the United States was an “indestructible Union, composed of indestructible States,” Chase had to ignore the existence of West Virginia, and the agreement with the Republic of Texas upon its admission, that it could divide into 4 additional States and that those additional States would be guaranteed admission into the Union if they so chose.
To reinforce his assertion that States, upon entering the Union, gave up all rights of sovereignty and became incorporated in a single, monolithic superstate, Chase had to ignore every reference to the States as individual political entities in the Declaration of Independence, the aforementioned Articles of Confederation, the Northwest Ordinance, the United States Constitution, and all intent of the framers, clearly expressed in the period.
In his zeal to confirm the supremacy of the Union, Chase ascribed qualities to it that are usually reserved for deities. In effect, he equated the Union to God and established a quasi-religious orthodoxy that requires adherence to a doctrine that elevates the federal government to godhood, its three branches to the Holy Trinity, and the judiciary as its holy priesthood.
There is no doubt that, had the States been exposed to Chase’s logic during deliberations over the ratification of the Constitution, they would have soundly rejected it and likely drafted a new Declaration of Independence.
The Supreme Court was not and never will be perfect. Some of the most heinous, morally reprehensible, logically flawed decisions have emanated from the Supreme Court. To imbue it with infallibility is to say that, when it upheld slave catching or when it upheld racial segregation, it was right. Yet decisions by the Court in both of those instances have been overturned.
Even Supreme Court Justice Oliver Wendell Holmes, Jr., in the 1904 case of Northern Securities Co. v. United States, recognized that the Court could be caught up in the politics and passions of the day and render bad decisions.
“Great cases like hard cases make bad law. For great cases are called great, not by reason of their importance… but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.”
With all its obvious flaws, some academics continue to point to Texas v. White as the “silver bullet” that handles all questions related to States separating from the Union. However, others tend to glide over it so as not to have to acknowledge its most significant problem. Embracing Texas v.White requires one to believe the last 150 years never happened.
Since 1869, the world kept spinning. Generations have come and gone, and the Supreme Court has continued to issue rulings that chip away at the foundations of Texas v. White. As the entirety of Chase’s determination is predicated on the claim that “perpetual union” is the “more perfect union” spoken of in the Preamble of the Constitution, the single ruling by the Court in the 1905 case of Jacobson v. Massachusetts, where it was determined that the federal government can gain no powers based on the Preamble, could utterly destroy Texas v. White.
The federal government’s position on self-determination has evolved to the point of signing international agreements, covenants, and treaties pledging to respect the right of self-determination. The same chorus of voices who declare that Texas v. White is the “end all, be all” of decisions on the matter of self-determination of the States are the same voices who declare that subsequent rulings by the Supreme Court obligate the federal government and the States to give treaty obligations, such as those dealing with self-determination, the same weight as constitutional law and argue for its application as such.
Ultimately though, any question of self-determination is political in nature. It is not, and never will be, a judicial question. Perhaps recognizing this fact and hoping to avoid any serious examination of the constitutionality of the question in general and Texas v. White specifically, those opposed to Texit quickly move on to their next argument.
Justice Antonin Scalia is often cited using the next argument. Taken from a letter written to an aspiring screenwriter, Scalia declared, “If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede.”
This is also a sentiment echoed by Paul Finkelman, a senior fellow in the Penn Program on Democracy, Citizenship and Constitutionalism at the University of Pennsylvania and a scholar-in-residence at the National Constitution Center, in a 2015 column in the New York Times.
“In short, nullification and secession were not new ideas in 1861, when 11 states left the Union, but had been part of the warp and weft of constitutional debate since the founding. But the Civil War ended the discussion. The question of the constitutionality of nullification or secession was permanently settled by the ‘legal case’ of Lee v. Grant, decided at Appomattox Court House in April 1865.”
This refrain is echoed more often than any other and is where fear truly enters into the strategy of Project Fear. It is a quick retort that is meant to stifle all further debate on the issue through intimidation. Let’s be honest. The assertions of the illegality or constitutionality of a State leaving the Union and that the Civil War settled the issue, although often linked, are truly two separate and distinct arguments. The former deals with a point of law that can be discussed, debated, and a definitive conclusion reached. The latter is a thinly veiled threat of violence, often used as a tactic by bullies, abusers of women and children, and tin-pot dictators propping up tyrannical regimes.
However, this argument also poses a significant legal, political, and moral problem for the United States and the world. If the military conquest of the States that seceded during the 1860s was the point at which the question of leaving the Union was settled, does this mean that all political questions, especially those related to self-determination, are deemed as perpetually solved by the use of force?
In a larger geopolitical sense, think about how that principle would have played out in the 20th century. When Germany invaded Poland, touching off the Second World War, how much different would the world be if the response from the United States was, “I guess that settles that.” Or Japan’s successful invasion of the Philippines. MacArthur’s response was, “I shall return.” It wasn’t, “It is now settled that the Philippines are now an indivisible and inseparable part of the Empire of Japan.”
Advocates of this line of thinking are missing the forest for the trees. If the Civil War truly did settle this issue, then no one would even be discussing it. It would be a fact. Establishment politicians, academia, and the media throw around the word “consensus” as though “everyone” agrees that the Civil War settled the issue and that anyone who disagrees is an outlier.
Take, for instance, Harvey Tucker, political science professor at Texas A&M, whose position on the matter has been parroted by other professors and regurgitated by a lazy media. According to Tucker, “Among scholars, the consensus is that the Civil War settled all these issues. Texas does not have the right to secede.”
Tucker, and those like him, ignore the ongoing scholarship on the issue and instead opt for a sound bite followed by a definitive declaration. The media largely ignores the numerous academic conferences held over the last 20 years dealing with the right of secession, the impact of international law on the right of self-determination, and the constitutional history of secession, many of them taking place in the United States with notable U.S. scholars. If the Civil War definitively and decisively settled the issue of separation from the Union, apparently the larger academic community didn’t get the memo.
The Texit question, though, is not one that is left solely to academics and their discussions of political and legal theory. What matters most on this political question is not whether the Civil War settled it, but whether the people of Texas believe that a question was settled that they’ve never been properly asked. The growth of support for Texit clearly shows that fewer and fewer Texans consider the result of the Civil War the final answer to the independence question.