By Bill Burch Chairman of Grass Roots Institute of Texas (GRIT)
Can Texas Really Actually Secede?
Now bear with me all the way to the end … you should find this interesting and intriguing as well as surprising.
I want to tell you upfront that I am not a lawyer. Although the conclusions were discussed with attorneys (and they agreed with them) these conclusions are mine alone. They are not meant to be legal advice and you should seek the advice of an attorney before relying on them.
I found this portion of the series the most interesting because as a native Texan I was raised to believe certain things. And due to the serious nature of this article I am providing links to back up everything contained within so there can be no doubt about the validity of the statements and conclusions.
First lets look at the legend.
The legend of Texas Secession" is that Texas made certain demands that had to be agreed to before it would consent to become a state in the United States. These included that:
• Texas would have the right to secede at any time;
• It could divide into five (5) states;
• As a former Republic its flag would always fly at the same height as the flag of the United States;
• Texas would retain all the land that was owned by the Republic and that
• Texas would sell approximately 1/3rd of its land to the United States in order that it could pay its national debt.
So whats the truth?
In the Treaty of Annexation April 12 1844
http://avalon.law.yale.edu/19th_century/texan05.asp Texas asked to become a Territory not a state.
• There was no request to divide into five states;
• No mention was made in regards to the flag;
• Texas would cede all its lands and ports to the United States and
• There was no intention of selling any of its land to the United States
This treaty was voted upon in the United States Senate on June 8 1844. The treaty was rejected by a vote of 16 for and 35 against.
So what is the truth and where did it come from?
Lets start with the height of the flag. It is true that the Texas flag can be flown on a separate staff at the same height and to the left of the United States flag but so can all other state flags
http://www.law.cornell.edu/uscode/html/uscode04/usc_sec_04_00000007----000-.html.
As to the rest of the legend and how Texas actually became a State we must consider three situations: the Missouri Compromise; the election of James Polk; and the debts of the Republic of Texas.
On March 1 1845 the United States Congress passed a Joint Resolution on Annexing Texas
http://www.tsl.state.tx.us/ref/abouttx/annexation/march1845.html. In this Resolution it states:
New States of convenient size not exceeding four in number in addition to said State of Texas and having sufficient population may hereafter by the consent of said State be formed out of the territory thereof which shall be entitled to admission under the provisions of the Federal Constitution; and such states as may be formed out of the territory lying south of thirty-six degrees thirty minutes north latitude commonly known as the Missouri Compromise Line shall be admitted into the Union with or without slavery as the people of each State asking admission shall desire; and in such State or States as shall be formed out of said territory north of said Missouri Compromise Line slavery or involuntary servitude (except for crime) shall be prohibited."
This section was added to obtain the support of Northern Senators. The idea was to use Texas as a counter balance against the admission of non-slavery states or slavery states.
If a new Northern State or Southern State were to be admitted they could simply cut off a piece of Texas to be in compliance with the Missouri Compromise.
Texas was embroiled in a conflict with its neighbor the newly created New Mexico Territory and had some debts remaining from its time as a Republic. Thus on September 9 1850 the United States Congress passed five (5) bills known as the Compromise of 1850".
These bills had much to do with the issue of slavery and one was specifically about Texas. (see
http://www.tshaonline.org/handbook/online/articles/CC/nbc2.html and
http://www.lsjunction.com/events/comp1850.htm)
In this compromise Texas ceded about 1/3rd of the state to the United States in return for $10 million dollars. This area now includes parts of New Mexico Oklahoma Colorado Kansas and Wyoming.
The problem with the Compromise and with Texas dividing into five states is Article IV Section 3 of the United States Constitution titled New States which says:
New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States or parts of States without the Consent of the Legislatures of the States concerned as well as of the Congress."
http://www.usconstitution.net/const.pdf
Often used as an argument that Texas cannot secede is the 1868 U.S. Supreme Court case Texas v White
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0074_0700_ZO.html. This case involved a claim by the reconstruction government of Texas arguing that United States bonds owned by Texas since 1850 had been illegally sold by the Confederate state legislature during the American Civil War.
The state filed suit directly with the United States Supreme Court which under the United States Constitution retained original jurisdiction on cases in which a state was a party. The Supreme Court ruling included
The Constitution in all its provisions looks to an indestructible Union composed of indestructible States.
However it also ruled
There was no place for reconsideration or revocation except through revolution or through consent of the States."
There was no specific wording in regards to the division of Texas into five States but there is the ruling that Texas continued to be a State and a State of the Union" and it is therefore assumed to have retained the right to break up into five states.
Now for some conclusions.
In regards to breaking up into five states it is my opinion that the Compromise of 1850 could be ruled unconstitutional because of Article IV Section 3. However if that is so then Texas could win back the land it ceded to the United States in the Compromise under Article IV Section 3 of the Constitution.
The Supreme Court ruling in Texas v White along with the 1901 ruling in DeLima v Bidwell (
http://www.taiwanadvice.com/delimavb2a3.doc) is said to overrule any arguments related to whether Annexation by a Joint Resolution of Congress was legal. However Texas v White was a case related to the sale of bonds during the Civil War and DeLima v Bidwell had to do with the charging of tariffs by the Port of New York on shipments from Puerto Rico.
Article IV Section 3 was not considered. Further sited is the Joint Resolution Annexing Hawaii. A Joint Resolution is not addressed under the Constitution.
This is not the normal way to bring in a State but the legal agreements are legally binding under Contract Law because all parties performed under the agreements as far as Texas becoming a State.
Now are you ready. Here the story gets even more interesting.
Texas and most states have another course of action. It is based in the 9th and 10th amendments to the U. S. Constitution.
Amendment 9 - Construction of Constitution. Ratified 12/15/1791.
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
Amendment 10 - Powers of the States and People. Ratified 12/15/1791.
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.
Lets also throw in Article III Section 2 of the U. S. Constitution. In all Cases affecting Ambassadors other public Ministers and Consuls and those in which a State shall be Party the Supreme Court shall have original Jurisdiction.
This means that the issue can be solved quickly without going through all the lower courts.
These Amendments were part of the Constitution when Texas became a State. Texas entered a contractual agreement with the United States. Texas paid a price in the form of all means pertaining to the public defense and other valuable goods for this entry. In return Texas was entitled to being protected under the Federal Constitution.
http://law.jrank.org/pages/12504/Contract-Law.html
Additionally Texas entered under a contract that was considered legal because of the performance. Therefore Texas and many other States should be able to sue the United State for breach of contract due to the Federal Governments failure to live up to its obligations under the Constitution.
Texas and other States could join together or separately and list the things that it (they) find in breach and give the United States a period to correct the situation. If the United States fails to comply then Texas and the other States could withdraw from the contract (secede) as a result of this breach.
According to legal scholar
Sir John William Salmond a contract is an agreement creating and defining the obligations between two or more parties.
http://en.wikipedia.org/wiki/Contract_Law and
http://www.taiwanadvice.com/delimavb2a3.doc
Also consider Article. VI. - Debts Supremacy Oaths of the Constitution. The Senators and Representatives before mentioned and the Members of the several State Legislatures and all Executive and Judicial Officers both of the United States and of the several States shall be bound by Oath or Affirmation to support this Constitution."
In simple terms the individual States in the United States could force the President and Congress to undo anything that has been done beyond what is covered in the Constitution.
Here are a few examples. Some of which most people would have no problem with and in fact may support. But these items are evidence of a breach of contract. They can be fixed only if there is an Amendment passed and ratified by the States.
1.) The United States Air Force. The Constitution only provides for an Army and a Navy. The portion of Article I Section 8 pertaining to this matter is:
To raise and support Armies but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;"
(I like the Air Force but you cant pick and choose. As an emergency measure it could be moved back under the Army.)
2.) The Department of Education
3.) The Federal Reserve System (not a federal component but its functions are against the Constitution)
4.) Nationalization of companies
There are also many others one may want to be considered. Additionally as stated above we may be able to bring back the land we lost in the Compromise of 1850. This may be more affective as leverage than as a practical approach.
The most important consideration is not that Texas and most other States could have a way of seceding but that they have a way of re-establishing States Rights.
We have seen that many elected political leaders tend to do whats politically expedient. For example 62 years ago the U.S. Air Force became an independent force. Thats plenty of time to get an amendment to the Constitution.
If you break the law on things such as this it becomes easier and easier until suddenly you are breaking the law or looking the other way on things that take away the liberties of We the People" and the States.
We need to follow the Constitution written by our forefathers.
There are some in power today who believe we should replace it or overlook the Constitution. It is my belief that the Constitution if followed is the best in the world. This battle should not be about secession but rather about saving the Constitution and the United States.
A lawsuit may result in secession either through consent of the other states or through a breach of contract lawsuit but this can also be a means to make the Government of the United States abide by the Constitution.
By the way there is a long history of the courts making the government adhere to the Constitution.
In closing I want to say Thank You" for the opportunity to allow me to discuss this fascinating issue with you. I have enjoyed reading and greatly appreciate the many thoughtful comments & insights those of you who have engaged have taken the time to contribute to the discussion.
As always may God bless the United States of America.
