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In June 2022, the Texas State Republican Convention adopted a platform urging the Legislature to put a referendum before the people of Texas in November 2023 “to determine whether or not the State of Texas should reassert its status as an independent nation.”
Secession and independence have been perennial themes throughout the history of Texas, which broke away from Mexico in 1836 and was an independent republic before it was annexed by the United States in 1845. As the United States was torn apart by divisions over whether slavery could expand into the nation’s western territories, Texas in 1861 voted to secede from the Union. In the ensuing Civil War, up to 750,000 people — more than 2 percent of all Americans — died. Following the defeat of the Confederacy in 1865, Texas was formally readmitted to the Union in 1870, during the Reconstruction Era.
Despite perennial talk of another secession, the law is clear that Texas may not leave the union.
The idea is most often raised by conservatives in the state who are angry over some kind of policy coming from the federal government — and the calls seem to become more frequent when a Democrat is occupying the White House. State Rep. Kyle Biedermann, R-Fredericksburg, filed a bill in 2021 to create a referendum election on whether Texans should create a joint legislative committee “to develop a plan for achieving Texas independence.”
“It is now time that the People of Texas are allowed the right to decide their own future,” he said in a statement announcing the legislation.
Even if the Legislature were to act on the new Republican Party proposal to put an independence referendum on the general election, it would not be legally valid.
“The legality of seceding is problematic,” Eric McDaniel, associate professor of government at the University of Texas at Austin, told The Texas Tribune in 2016. “The Civil War played a very big role in establishing the power of the federal government and cementing that the federal government has the final say in these issues.”
Many historians believe that when the Confederacy surrendered at Appomattox in 1865, the idea of secession was forever defeated, McDaniel said. The Union’s victory set a precedent that states could not legally secede.
Even before Texas formally rejoined the nation, the U.S. Supreme Court declared that secession had never been legal, and that, even during the rebellion, Texas continued to be a state.
In the 1869 case Texas v. White, the court held that individual states could not unilaterally secede from the Union and that the acts of the insurgent Texas Legislature — even if ratified by a majority of Texans — were “absolutely null.”
When Texas entered the Union, “she entered into an indissoluble relation,” Chief Justice Salmon P. Chase wrote for the court. “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.”
Chase added: “The 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.”
Another source of confusion and misinformation over the years has been language in the 1845 annexation resolution that Texas could, in the future, choose to divide itself into “New States of convenient size not exceeding four in number, in addition to said State of Texas.” But the language of the resolution says merely Texas could be split into five new states. It says nothing of splitting apart from the United States. Only Congress has the power to admit new states to the Union, which last occurred in 1959 with the admission of Alaska and Hawaii.
If there were any doubt remaining after this matter, the late Supreme Court Justice Antonin Scalia set it to rest when he asked by a screenwriter in 2006 whether there was a legal basis for secession. In his response, he wrote: “The answer is clear,” Scalia wrote. “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.’)”
Sewell Chan, Aneri Pattani and Matthew Watkins contributed reporting. This story was originally published in 2016 and then updated in 2021 and 2022.
Correction, June 21, 2022: A previous version of this story misspelled the name of a former Texas Tribune reporting fellow. Her name is Aneri Pattani, not Aneer Pattani.
Dubuque Herald, November 11, 1860
This is one of the questions of the day, and it appears to be no longer a mere abstract or theoretical question. The Constitution makes no provision for secession. A Government is not a corporation whose existence is limited by a fixed period of time, nor does it provide a means for its own dissolution. The Constitution of the United States provides that it may be amended, and prescribes how this may be done, but it does not, as it exists now, contemplate its own destruction, nor a dissolution of the Government of which it is the living evidence. Constitutionally, there can be no such thing as secession of a State from the Union.
But it does not follow that because a State cannot secede constitutionally, it is obliged under all circumstances to remain in the Union. There is a natural right, which is reserved by all men, and which cannot be given to any Government, and no Government can take it away. It is the natural right of a people to form a Government for their mutual protection, for the promotion of their mutual welfare, and for such other purposes as they may deem most conducive to their mutual happiness and prosperity; but if for any cause the Government so formed should become inimical to the rights and interests of the people, instead of affording protection to their persons and property, and securing the happiness and prosperity, to attain which it was established, it is the natural right of the people to change the Government regardless of Constitutions. For be it borne in mind, the Constitution is an agreement made among the people that the Government formed by it is to be just such a Government as it prescribes; that when it recognizes a right to exist, it must protect the person in the enjoyment of that right, and when it imposes a reciprocal duty upon a portion of the people, the performance of that duty it will have enforced. When a government fails in any of these essential respects, it is not the Government the people intended it to be, and it is their right to modify or abolish it.
So, if the rights of the people of the United States as recognized by the Constitution, are not secured to them by the Government, and the people of any State have no other means to redress their grievances except by separating themselves from their oppressors, it is their undoubted natural right to do so. Now it is unquestionable that one of the rights recognized to belong to the Southern people by the Constitution, and pledged to be respected by the other States, and secured to them by the Government, has nevertheless been violated, wilfully and intentionally by twelve Northern States; and this course towards the South has been virtually approved of by a large majority of the Northern people at the recent election.
What then is the South to do[?] Suffer the compact which brought them into the Union to be violated with impunity, and without means of redress; submit to incursions into their territory and trespass upon their property by northern abolitionists[?] Look on submissively upon every aggression upon their domestic institutions[?] Who expects, who desires the South to submit to all this? The South will not do it. The South ought not to do it.
Let the Northern States repeal their Personal Liberty Bills, and pass laws recognizing the rights of the Southern people to their property. Let Southern people be permitted to enjoy their rights unmolested and undisturbed. Let them, if they desire it, carry with them in their tours of business or pleasure their domestic servants. Let the Southern people be treated as friends and neighbors, not as aliens and enemies. If this be done, no Southern man will think of secession, much less desire it. If this be not done, there is but one course left for the South by which its people can enjoy the rights which they believe to be theirs by nature and by the Constitution of the United States.