Texas Hold 'Em: Lone Star Secession
The Supreme Court ruled that a state may not leave the Union. But can a former sovereign nation be de-annexed?
Can a state leave the Union?
Once part of “these United States,” is it lawful for South Carolina or Mississippi or California to renounce statehood and bail? Are the states members of the country by choice? Or is America like the Mafia, and once you’re in, you’re in?
Jefferson Davis—“perhaps the best informed, probably the best educated, and certainly the most intellectual man in the Senate,” in the words of Civil War historian Shelby Foote—believed that States’ Rights extended to secession from the Union, and to avoid war, he wanted the Supreme Court to decide the matter, once and for all. But that didn’t happen. At least, not right away.
The question of secession—of disunion—was litigated on the battlefield starting in 1861, but not in the courts until eight years later. In Texas v. White, a case about U.S. bonds, the Supreme Court ruled that, even though Texas quit the Union and joined the Confederacy, as far as the law was concerned, it had remained a state the entire time. Chief Justice Salmon P. Chase, writing for the majority, explains this Schrödinger’s cat rationale, in which Texas both is and is not a state, simultaneously:
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?
When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.
Antonin Scalia, the late conservative jurist and hero to Samuel Alito and Clarence Thomas, agreed with that decision, writing in a letter to the screenwriter brother of a legal blogger:
I cannot imagine that such a question could ever reach the Supreme Court. To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, “one Nation, indivisible.”) Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.
A missive to the guy who wrote Tranquility Base is neither amicus brief nor draft opinion, but still.
In his dissent in Texas v. White, Justice Robert Cooper Grier discounts the notion that Texas never left the Union as “legal fiction.” You can practically taste his WTF:
Is Texas a State, now represented by members chosen by the people of that State and received on the floor of' Congress? Has she two senators to represent her as a State in the Senate of the United States ? Has her voice been heard in the late election of President? Is she not now held and governed as a conquered province by military force? The act of Congress of March 2d, 1867, declares Texas. to be a “rebel State,” and provides for its government until a legal and republican State government could be legally established. It constituted Louisiana and Texas. the fifth military district, and made it subject, not to the civil authority, but to the “military authorities of the United States.” . . . .
I call only submit to the fact as decided by the political position of the government; and I am not disposed to join in any essay to prove Texas to be a State of the Union, when Congress have decided that she is not. It is a question of fact, I repeat, and of fact only. Politically, Texas is not a State in this Union: Whether rightfully out of it or not is a question not before the court.
The tumescent States’ Rights hard-on the 2022 Supreme Court is currently sporting suggests that, on the matter of secession—the ultimate State’s Right!—Roberts & Co. may hold more with Grier than Chase. Too, a reactionary, captured SCOTUS that is on the verge of overturning Roe v. Wade, a popular decision from 1973, is unlikely to have second thoughts about countermanding an obscure case from Reconstruction that was not even intended to address the issue of secession. It’s not like Scalia is still around to tell Sam and Clarence what to do; that responsibility appears to have fallen to Ginni Thomas, a wackadoodle who appears to sincerely believe the Big Lie that Trump won the 2020 election.
Speaking of secession and erections: Putin gets off on the idea of an Un-United States, and the Kremlin’s fingerprints can usually be found on any American separatist movement. CALEXIT was the brainchild of Louis Marinelli, who led something called the Yes California Independence Campaign in 2016. After that endeavor failed spectacularly, he gave up and moved to Russia, his wife’s native country—in case there was any doubt about who would most benefit from California declaring independence.
And now the corrupt and fascist Republican minority that runs Texas wants the Lone Star State to secede—or, at least, to have a referendum “to determine whether or not the State of Texas should reassert its status as an independent nation.” Texas v. White aside, this has caused a passionate debate among Americans, Texan and otherwise:
While moderates were advising sadly, “Let the erring sisters depart in peace,” extremists were violently in favor of the split: “No union with slaveholders! Away with this foul thing! . . . .The Union was not formed by force, nor can it be maintained by force.”
That’s a passage from Volume One of Shelby Foote’s The Civil War, but the sentiments about Texas leaving today strike a similar chord. Here are three replies to a tweet alerting me to the Texas GOP “independence” plan, which represent the feelings of many, many non-Texans on the matter:
The problem is that, contrary to popular belief, most Texans are not Bible-thumping racist bigots (although, to be fair to Mr. Bennett-Chevalier, who is generally an astute observer, Bible-thumping racist bigots do enjoy a disproportionate amount of power in the Texas state government). It’s not like all of America’s fascists are in Dallas and Houston and Lubbock and San Antonio, and the rest of the country is some progressive Blue-topia. I live in one of the bluest towns in one of the bluest states in the Union, and I still come across Neanderthals wearing MAGA hats, LET’S GO BRANDON flags flying in front of houses, and pick-up trucks with FJB bumper stickers. The day after the election, some practical joker removed the BIDEN HARRIS sticker from my car, which was parked in front of my house, and replaced it with a TRUMP 2020 one! This fascist rot, this infestation of assholes, is not exclusive to Texas. It’s everywhere. As Abraham Lincoln noted in his First Inaugural Address, “Physically speaking, we cannot separate. We cannot remove our respective sections from each other nor build an impassable wall between them.”
Indeed, the majority of people in Texas are 1) Democrats, and 2) not assholes. Surely we don’t want to relegate the state’s 5,259,126 Biden voters to Greg Abbott’s hateful, cruel dictatorship, or the Wild West anarchy of an armed populace of misogynistic white supremacists? Republicans have a stranglehold on state and federal government in Texas, it says here, because of the myriad ways they cook up to make it really really hard for non-white people to vote. Far better to get more Texans to the ballot box and turn the state blue than allow it to dump the Union again. (Cue up that Taylor Swift song.)
Love it or hate it, Texas is also a key component of American culture: the Stetsons, the spurs, the drawl, the country music, the rodeos, the high school football, Texas Hold ‘Em, J.R. Ewing, the Dallas Cowboy cheerleaders. Ask some random European to describe the average American, and the answer is much more likely to involve Texas than, I don’t know, Connecticut. The rugged (white) cowboy is an American archetype, even though most cowboys of the nineteenth century were either Native or Mexican.
So I’m not down with secession, for Texas or any other state. Let me repeat: I do not support any state leaving the Union. I’m in favor of a strong federal government, and I think what the post-Trump Supreme Court is doing with regard to States’ Rights is both logically wrong and incredibly dangerous to our democracy.
But just as a thought experiment, let’s explore the idea of Texas breaking away from the United States. Because there is a way to make the Lone Star State Lone Again— without violating Texas v. White.
A few weeks ago on The Five 8, I shared a modest (and tongue-in-cheek) proposal: rather than waiting for Texas to secede, the United States should simply de-annex it.
Since the Louisiana Purchase of 1803, Texas is the lone state in the Lower 48 that was a sovereign nation before joining the Union. This is what the state GOP meant when they wrote that Texas might “reassert its status as an independent nation.” Texas has a distinctly different backstory than all the other states (except Hawaii). In the first quarter of the nineteenth century, Texas was part of Mexico. Then there was a revolution, and in 1836, the Lone Star State became the Republic of Texas. In 1845, said Republic of Texas was folded into the Union. (In other words, Mexico would not surrender Texas to us, so after Texas declared independence from Mexico, the U.S. admitted it to the Union. This is more or less what Putin did in the Crimea in 2014.)
Formally, Texas was annexed. John Tyler, the first Vice President to assume the Presidency upon the death of the incumbent President, spent two years lobbying for Texas to join the Union. The nonplused Senate was unconvinced, voting in 1844 not to ratify the Tyler-Texas Treaty (which, because it was an agreement with a foreign nation, required a supermajority to pass). Only after Tyler lost to James K. Polk in the election of 1844 was the treaty ratified, in February of 1845, in the last days of the former’s lame-duck administration.
What happens if tomorrow, the Tyler-Texas Treaty is declared null and void? That would not be Texas seceding, which Texas v. White prohibits states from doing, but rather the federal government de-annexing one of the few states that used to be an independent nation—less South Carolina leaving the Union in 1861, and more Slovakia parting ways with the Czech Republic in 1993. (On what grounds the treaty would be declared null and void, I have no idea—but if Trump can find lawyers eager to make legal arguments to overturn the will of the people in a 21st century national election, surely some creative law professors can be recruited to poke holes in the Treaty of Annexation between the United States and the Republic of Texas.)
What happens if, suddenly, Texas is no longer a state?
Right off the bat, two of our worst Senators are gone. (So long, Rafael! Enjoy Cancun!) Democrats would then have enough of a numerical advantage in the Senate to shit-can the filibuster and get cracking on the Biden-Harris agenda: expansion of the Supreme Court, sweeping voting rights reform, gun safety legislation, codification of Roe, elimination of dark money, and so on. (I know, I know. Schumer would still find a way to fuck it up. But let’s indulge the fantasy.)
In the House, we’d lose some truly wretched Representatives, including Chip Roy, Dan Crenshaw, Ronny Jackson, Pete Sessions, Kay Granger, and the dumbest member of Congress, Louie Gohmert.
Elon Musk would no longer live in the United States. Indeed, Washington could use this as an excuse to revoke his U.S. passport.
The 38 electoral votes allocated to Texas would evaporate like so many drops of water on a hot prairie afternoon. Without those 38 votes, Republicans would have a hard time winning another national election, like, ever.
And the GOP’s favorite election-year bugbear, migrant caravans coming across the border? That becomes Texas’s problem. The Lone Star State would be a buffer zone between the U.S. and Mexico.
De-annexation would not preclude Texas from rejoining the Union in a year or two—but after all those laws passed, and the Supreme Court was expanded, and voting rights safeguarded. After a few years of living in a retrograde Christian theocracy run by deranged, amoral assholes who can’t even keep the fucking power on, let alone run a functional government, the many excellent people in Texas would certainly sue for readmission.
Let me say again: I am not in favor of this plan. I would much rather see the aforementioned excellent people in Texas rise up and take their state back from Abbott, Dan Patrick, the indicted Ken Paxton, and the troglodytes in the Statehouse, by voting for Beto in vast numbers this November. I have a lot of friends in Texas, I like Texas a lot, and, more importantly, the idea of slamming the door on all the women, minorities, non-Christians, and members of the LGBT community who would be harmed by our abandonment is too horrific to contemplate. We cannot do to Texas what the Uvalde police did to the schoolchildren.
Or, as this Texas resident put it:
This was the genius of Abraham Lincoln. He could have simply allowed the slave states to secede. That would have been easier for him politically, economically, personally. But he did not. He refused to even consider it. Because that would mean consigning Southerners to what we now call fascism. That, he understood, was the alternative to democracy. As he said on March 4, 1861, in his First Inaugural Address:
Plainly the central idea of secession is the essence of anarchy. A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism. Unanimity is impossible. The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left.
“The rule of a minority, as a permanent arrangement,” is exactly what the GOP now wants—in Texas, and everywhere. The six rightwing radicals on the Supreme Court want it, too. These despotic forces must not prevail.
Photo credit: Silverbanks Pictures Image Archives. Texas cowboys, 1901.
If Democrats are, in fact, a majority in Texass, they sure as hell don't act or vote like it. Sure, Republicans do everything they can to make it harder for non-white non-rural voters to actually vote, but that's no excuse. Abbott and the other Christo-fascists have terrible governing records. The power grid, COVID, natural disaster response, mass shootings are all fodder for attack ads. Long past time for them to be tarred with the brush of truth.
Thanks. Good research, wise observations. Only one typo. You might like to know that for several years now there has been popular talk in Austin of seceding from Texas. With the recent declaration of “principles” by the state’s Republican Party, the secession of Austin has become more widely discussed. If Texas can leave the Union, Austin can leave Texas and apply to the US for protection as a US territory, like Guam or Puerto Rico. Personally, I’m in favor.