Is There Anything to the Claim that Texas Can Secede?

News at Home

Mr. Lust is a PhD Candidate in history at the University of Houston.

Texas cannot secede from the United States. Rick Perry is wrong. Ron Paul is wrong. All of the teabaggers (hilarious by the way) are wrong. First and foremost, the United States and the Confederate States fought a little war in the 1860s. While the cause of rupture was the protection of slavery, a point of contention from a political standpoint was can you secede simply because you don't like the government duly elected. When Robert E. Lee surrendered on April 9, 1865, that question from a practical standpoint was answered. Anti-slavery, pro-free wage labor, pro-capitalist, pro-Union policy prevailed.

Nonetheless, it took a Supreme Court decision four years later, Texas v White, to settle this from a legal standpoint. In that case, dealing with whether bonds had been transferred illegally by the government of the Confederate States, in an attempt to stay clear of federal involvement, one of the defendants (John Chiles) claimed that the Supreme Court did not have jurisdiction, because Texas was no longer a state but essentially a conquered province. Salmon Chase, the chief justice of the United States Supreme Court wrote the majority opinion (one that disagreed with Chiles) and said in part:

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?

Chase continued that by incorporating itself into the United States, Texas could not claim that they had formed "a compact," but rather they were part of that indissoluble body. In short, there is no such thing as "a compact" and secession was (and is always) counter to the laws of the United States. This standard was upheld in 1905's so called insular cases - essentially states that were brought in via treaty, conquest, or agreement, were subject to the same law - once they are duly incorporated, secession is off the table. Period.

The supporters of Texas secession, most significantly Perry, have pointed to Texas State Constitution of 1845 as a rationale. At a "teabag" protest in front of the Alamo on April 16, Perry said, "When we came into the Union in 1845, one of the issues was that we would be able to leave if we decided to do that." His supporters hollered and screamed their approval. The problem is, they are all wrong. Brutally wrong. There is nothing in the 1845 Constitution that says Texas may leave if dissatisfied. But let's give the chowderheads the benefit of the doubt and assume that on the basis of the preamble* you could (sort of) see where they might have gotten this misguided notion. It would be all well and good if Texas were actually governed under the provisions of the 1845 Constitution. The problem is we're not. After that little war in the 1860s I referred to earlier, Texas had to write a new constitution in 1876, which is the guiding document. And, here's the surprise - it too says nothing about the right to secede. One would think that the governor of Texas would know under which document he governs. But maybe that is expecting too much.

Aside from the governor not knowing his own state law, two other points argue against this notion of the 1845 Constitution allowing secession. The doctrine of acquisitive prescription (cited in the so-called insular cases) runs counter to Perry's claims, as Texas transferred its sovereignty to the United States. Similarly the principle of estoppel would also run counter to the idea of secession. Texas desired statehood from the moment it seceded in 1836 (this time from Mexico), supported and encouraged by Sam Houston. While many Texans point with pride to the nine-year republic period, they conveniently forget that in 1837, the Texas minister plenipotentiary, at the direction of the Texas legislature made application to the United States for annexation. The US rejected this application, but made it clear to the minister, Memicun Hunt, that it was solely because Texas technically remained at war with Mexico, and that once this were resolved, the path to statehood was open. Texas once again went down this road in 1838, as former President John Quincy Adams filibustered the annexation and killed the prospect of Texas statehood. Only then did Texas resign itself to being a republic for the time being (for reference see "The Speech of John Quincy Adams of Massachusetts, upon the Right of People, Men, and Women, to Petition on the Freedom of Speech and Debate in the House of Representatives of the United States; on the Resolutions of Seven State Legislatures, and the Petitions of More than One Hundred Thousand Petitioners, Relating to the Annexation of Texas to this Union"). At issue here is the following: Texas desired statehood, moved to accomplish statehood, and ultimately attained statehood. Texans can't claim now in 2009 (just as they couldn't in 1845, or in 1861, or at any other point) that they did not wish to be a state under the U.S. Constitution, or the U.S.'s "rules" more generally.

Finally, the principles of these proponents of secession have already unraveled. Never mind that all of this recent talk of secession began as a protest against federal interference in the form of economic stimulus dollars. The Texas governor and legislature all stood unified, saying we will not accept federal interference, promising that they would hate to discuss it, but secession was certainly on the table. Apparently their principles vanished. On April 17 (2 days later!) the Texas House unanimously passed a $178.4 billion budget that contained a $10 billion shortfall offset by -- wait for it -- the federal stimulus package. Speaker Joe Straus said of the apparent contradiction, “I’ve been critical of the stimulus approach from Washington, but I have to say that it is helping us balance our budget” (Houston Chronicle, “Texas House Unanimously Okays $178.4 Billion Budget Plan,” 18 April 2009).

So can we please get a grip? I understand that the Republicans are upset that President Obama is “forcing” them to accept a stimulus package with which they disagree. Whether those of us on the left like it or not, the job of the opposition party is to oppose. And there should be no problem with opposing. Political conservatives lost, and that’s all there is to it, just like the "liberals" lost in 2000 and 2004. But get over it -- create an agenda. Focus on policy. Fix your own house. Oppose all you want. But stop with the secession talk. It is over -- it's counter to the law and the people proposing secession have already sold their principles to balance the budget.

*"We, the people of the republic of Texas, acknowledging with gratitude the grace and beneficence of God, in permitting us to make a choice of our form of government, do, in accordance with the provisions of the joint resolution for annexing Texas to the United States, approved March first, one thousand eight hundred and forty-five, ordain and establish this constitution."

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More Comments:

Andrew Joseph Pegoda - 6/1/2009

Actually, any state can fly its flag equal with the U.S. Flag.

Most scholars agree that Texas CANNOT be divided into five states.

Finally, great article!

R.R. Hamilton - 5/9/2009

Prof. Lust seems to know. I don't. So, what is it and why is it "hilarious" in this context?

Buddy Lehde - 5/2/2009

I’ve read both sections of the U.S. Constitution, the Supremacy Clause (Article VI, paragraph 2) and the 14th Amendment, to which you refer. I admit that I read them from a lay mans point of view, but I believe all laws should be written so anyone who must abide can understand.

Article VI:
“All debts contracted and engagements entered into before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.” (It is my assumption that Confederation in this context refers to the Articles of Confederation).

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding. (It is my assumption that this refers to Treaties made prior to adoption of the Constitution.)

Paragraph 3 refers to Oath to support the Constitution.

14th Amendment
Section 1 refers to rights granted to all citizens of the U.S. and individual States may not abridge those rights
Section 2 refers to apportionment
Section 3 refers to qualification for office
Section 4 refers to public debt
Section 5 refers to enforcement of the 14th Amendment (further amending by the 26th Amendment) which refers to voting age.

Perhaps I’m missing something but I read nothing in here to override State laws except those concerning prior contracts, treaties, or the rights of citizens of the United States. If I am wrong, please direct me.

Oscar Chamberlain - 5/2/2009

"Two, THE PERPETUITY OF THE UNION DEPENDS on the UNIMPAIRED right of local self-government."

The problem is the supremacy clause: it clearly makes national law superior to state constitutional provisions. The doctrine of enumerated powers and the tenth amendment provides some grounds for appeal by states to the courts concerning federal laws that may violate state sovereignty. Given the scope of those enumerated powers, as expanded by the 14th amendment, there are not many aspects of state governmental authority that are beyond the reach of the national government.

Buddy Lehde - 5/2/2009

"SB 83 requires that students, once during each school day, recite the pledge of allegiance to the United States and Texas flags followed by one minute of silence. During that one minute, students may choose to reflect, pray, meditate, or engage in any other silent activity not likely to interfere with or distract another students."

Looks like a pledge to BOTH flags. Be it known that BOTH fly from my house daily.

If you've read any of my other posts, you should know that I am not anti-American, but have been writing as pro-U.S. Constitution.

Buddy Lehde - 5/2/2009

Ahh, you speak of a FLAG pledge. There is another: "Honor the Texas flag; I pledge allegiance to thee, Texas, one state under God, one and indivisible."

The original pledge of 1933, amending in 1965, was again amended by House Bill 1034 during the 80th Legislature with the addition of "one state under God." The revised wording became effective on June 15, 2007.

I have yet to research the Perry signing in 2003 and about which pledge he made into law.

Buddy Lehde - 5/2/2009

You are correct in my confusion of aurthors. My apologies.

len hildebrandt - 5/2/2009

In 2003, Gov. Perry signed a law requiring the recital of the Pledge of Allegiance each day in Texas schools. There was much ado about "under God" at the time. Apparently, "indivisible" has too many syllables.

len hildebrandt - 5/2/2009

It's an insult to Hemingway to allege that he would ever have put his name on the sloppy, self-indulgent patter packaged under the title "Travels with Charley." That was done by another once-great writer in full decline, John Steinbeck.

Maarja Krusten - 5/2/2009

Thanks! I've read your other postings under the article, very interesting. We haven't moved far from my original thread but are far removed from some of your other postings here. Although addressed to you, some of my comments were meant for Mr. Lust and to my fellow historians as a whole. In public forums, I don't think we as a profession take into account that when we appear in public, we're ambassadors. Ambassadors for our professional values or, for those who choose to interject personal opinion into history essays, for political parties. It probably jumps out at me more than for others because I'm affiliated with no party. I hope you continue to follow HNN and continue to share your knowledge and insights. You may even be lucky enough to find some authors of main page essays here who engage with you and other readers!



Buddy Lehde - 5/2/2009

I believe that you and I have strayed far from the original topic of secession and more specifically, the Texas v White case which triggered my initial response. If you have read my posts to others on this site I think you will find that I’ve stayed a little more focused on the subject.

Not withstanding, I too have enjoyed our discussion. With you a government historian and me on the opposite end of the spectrum, I believe we could both benefit in discussing other issues that are not a part of this forum. I have tried to steered clear of politics, parties, policies and other things that are burning issues today. I’ve a couple of engineering projects that are in the closing stages and that has afforded me time to enter into such discussions. Besides, I’ve a lot of time to burn at home. I’m new to commenting via the internet and don’t know how to take discussions off-line.

I have no disregard of scholars except they do not seem well-suited to keep the project schedules on which my contracts are based. In their realm, I’m sure that they do a superb job. I do, however, hold those in a teaching role to a higher standard. Facts, complete and thorough. It’s a proven fact that if you teach the young to believe as you, the future is yours.

The apology still stands.


Maarja Krusten - 5/2/2009

Thank you for your interesting and thoughtful response! No need to to apologize to me for your assessment of scholars. That I myself am an historian by profession does not mean I cannot accept assessments of scholars by those who have worked with them or have read their articles. The profession benefits from such assessments and certainly is not so weak that it cannot handle them.

Thank you for telling me more about your background, as well. I can understand why an engineer especially would look for factual presentations in an history article here on HNN. And express surprise when personal opinions appear in such a piece. Not all historians write that way.

From my experience, few authors who post articles on HNN actually use this web 2.0 forum for respectful dialogue with readers, even those who offer constructive criticism. I think it will take some time before scholars become accustomed to the idea that sites such as this have the potential to offer much more than places to drop articles in a hit and run fashion, so to speak. Many learning opportunities missed here, in my view.

As someone who successfully has made a career of history in Washington, D.C., under Republican and Democratic administrations alike, I find HNN's greatest value to be the way it offers glimpses into how people (writers and readers alike) view and frame issues. I myself am an Independent although I called myself a Republican in earlier times. (I voted straight Republican throughout the Cold War.)

Most of my career has been spent in working with Presidential (White House) records. My sense now under a Democratic administration as in the past during a Republican one is that, as we often heard commentators say during the Bush administration, law abiding citizens have nothing to fear from the government's efforts to keep the nation safe. But I understand that people's perceptions are formed due to many factors, which obviously are going to differ, depending on where they sit. Academics play a part in those factors, in my view. I'm fascinated by the fact that academics, or at least those who clearly support one party or another, do not always seem to consider that when speaking in public, they are acting as ambassadors for the party they support. Sometimes they even feed into stereotypes and potentially harm rather than help the side they support. It's one reason why I keep saying to them, look at the big picture, respect where others are coming from even when you disagree with them politically, and try to think more strategically! Presentation matters as much as the facts one recites.

I've enjoyed chatting with you here,


Buddy Lehde - 5/1/2009

Yes, it is an interesting subject and reading on the subject helps fill my idle time. I think a symposium on the subject would rapidly turn into a shouting match for the issue is very emotional. Thanks to the internet, there is so much not found in modern history books. The history of secession extends long before the War Between the States, even to the founding of the Union. The New England Secession movement started, I believe, around 1804 and lasted a decade. As secession is not mentioned in the Constitution, President Jefferson opined to let them go. Only with Lincoln did it become a serious issue. For all the good we think of Lincoln, for all practical purposes, this was Lincoln’s War. And, what most know or are taught comes from books written by the Victors.

Let me state that there is nothing in the Annexation Treaty between the Republic of Texas and the United States of America or in the current Texas Constitution that EXPLICITLY gives Texas the right of withdrawal from the U.S. As a result of the War, the Treaty is probably null and void anyway. Only a lawyer could answer that question. One could only state IMPLICITLY on the phrases “subject only the Constitution of the United States” and “the perpetuity of the Union depends on the unimpaired right of local self-government.” The Federal government has been shredding the Constitution since FDR and the current Stimulus Package states that State Legislators can override a Governor who refuses to accept the whole or any part of the package. If that is not an impairment of the right of local self-government by the Federal government, I don’t know what else is. That is the gist of what Governor Perry said. Section 29 affirms that the law is null and void.

Why is Texas in the news when other states, notably Vermont, speak of secession? I suggest you read Ernest Hemingway’s “Travels with Charley” where, I quote, “Texas is a state of mind, Texas is an obsession. Above all, Texas is a nation in every sense of the word” and “I sense I witness those who love Texas and those who hate it.” You will find both kinds in these posts of Texas secession. As the Union was formed in 1775 out of grievances with King George and the English government, the Republic of Texas was born in 1836 out of Antonio Lopez de Santa Ana usurping the 1824 Constitution of Mexico, which created a federal republic, into one of a military dictatorship. We take constitutional issues serious.

Alyssa Conti - 5/1/2009

Mr Winningham, I found your response to Mr Walker incredibly disrespectful and uncalled for. Not only did you not answer any of his questions, you made him seem like an unintelligent nuisance. If you had no intention of answering his questions or no knowledge with which to do so, you should not have wasted space with a response. The question has nothing to do with Texas desiring or not desiring annexation, only the process that it occured under. I myself do not know the answer to that and therefore will make no attempt at enlightening either of you on the issue.

As to your second response, obviously Mr Walker is referring to the US constitution as he states that Texas as well as any other state has the ability to remove itself from the senate. Why would the Texas constitution have an article that allows New York to remove itself from the senate? It wouldn't. Whether or not the US constitution does in fact allow for this, I don't know. However I do find it very rude and immature that rather than trying to understand fully the questions being posed, you chose to assume (incorrectly) that Mr Walker was ignorant as to the constitution that governs Texas.

Additionally, it has been proved in the very first set of comments in response to this article that the current Texas constitution does in fact allow for Texas secession, however since it is obvious that you did not read this post, I have copied it into this post as well

"Concerning the 1876 Texas Constitution (current), Article 1 is the Bill of Rights. Section 1 of Article 1 reads: “Texas is a FREE and INDEPENDENT State, subject ONLY 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 of the States.” To me, two things are key in this statement. One, it states subject only to the Constitution, not the Articles of Confederation, not the US Congress and not the Presidency. Two, THE PERPETUITY OF THE UNION DEPENDS on the UNIMPAIRED right of local self-government.

Section 2 states that the People have the right to alter, reform or abolish their government.

And lastly, Section 29 reads “To guard against the transgressions of the high powers herein delegated, we declare that everything in this “Bill of Rights” is excepted out of the general powers of government, and shall forever remain inviolate, AND ALL LAWS CONTRARY THERETO, OR TO THE FOLLOWING PROVISIONS, SHALL BE VOID.”"

So there you have it. The cold hard facts are actaully being posted instead of ignorant interpretations of other people's misinformed rants.

Buddy Lehde - 5/1/2009


So nice to hear a reasoned response. The subject is a highly charged emotional issue and sometimes it is difficult hold back and not enter the fray with those who operate on the surface, not delving into serious thought. If I have offended your profession by my comments about the article author, you have my sincere apologies. It’s just that I abhor revisionist history. I always try to remember that history books are written by the victors, as is the case of the War Between the States.

My career has been in engineering and, since I’m an old codger, covers many years. Fact, my user name is OldTexasGent. As an engineer, so many times I’ve needed to review forensic data to determine what happened so as to make my designs safer and better. Safety is foremost in what I do for, oftimes, lives depend on my decisions. That has turned my into somewhat a history buff and I do my research. I have traveled many places on this Earth and know that the U.S. is the greatest of all. My love for the U.S. is exceeded only by my love for my Lord and Savior, my family and Texas (in that order). Also, having been a Cold Warrior (standing the line in Germany during the days of MAD), I have sworn an irrevocable oath the defend the Constitution against all enemies, foreign AND domestic. I guess all of the above make me a prime candidate for DHS scrutiny.

Defending the Constitution, as it is written, is my reason for entering these discussions. If my opinions expressed here are in error, I will willingly listen to counter arguments. I am extremely analytical and will only be convinced with strong data.

Concerning academes, I understand the necessity of research and deep thought. I am, however, continually amused with their listing of letters, degrees, publications, etc. in order to show their importance. Looks sorta pompous to me. From my experience, they do have a problem with thinking out of the box, something I do every day.

Donald Wolberg - 5/1/2009

Thank you for the added remarks. The subject remains very interesting, certainly worth a symposiumd and volume of analysis.

Maarja Krusten - 5/1/2009

I actually do believe that academically trained professionals can succeed in adding value to products in the corporate world or the governmental world. If they are historians, it helps if they have open minds, respect people from other disciplines and are willing to learn how they fit in to a corporation's or a agency's decision making process. An historian's training in critical analysis can help add value to products or processes. Not all academically trained historians are theorizers, only. I've actually worked in positions in some of my past jobs where I had to make up-or-down decisions and to learn to live with the consequences! As to the latter, although military departments are best known for valuing after action examinations and lessons learned, they have their place in civil agencies, too.

Maarja Krusten - 5/1/2009

Thank you for the information, I had not looked up anything about Clayton Lust. As to the history profession (where I make my living), I actually don't know where I fit in among historians in arguing that public presentations carry more weight and reach a broader audience when they focus on the historical rather than personal opinion. This isn't the first time I've made that argument here on TNN. Part of my reason for doing so is to urge historians to be more self aware and to think more about strategic and tactical choices. I think I'm fighting a losing battle on that on HNN, however.

My career as a historian has been in civil service with the federal government (36 years and counting--I started federal service while Richard Nixon was President), rather than in the academy or in the private sector (where you work). In offering advice to other historians, I’m reflecting my civil servant's training which is to look at issues in terms of problem solving. Hence my tendency to try to trigger brainstorming, starting with examination of causes and conditions and leading to consideration of strategies and tactics that might lead to better outcomes.

Brainstoriming is welcome within the government, where, despite some stereotypes to the contrary, the concept of product improvement and actually does exist. My colleagues and I did a lot of it when I worked at the U.S. National Archives, for example. My experiences on HNN suggest to me that brainstorming about tactics and strategies and strengths and weaknesses within the profeswsion is much less welcome in academe. It certainly seems to be "undiscussable" in public.

I think we're as likely to see historians discuss how they come across on HNN as we are to see Bill Clinton discuss how meandering meetings that stretched out for hours affected decision making within the White House during his term. (I somewhat share Clinton's tendency to get drawn into side issues during discussions here on HNN, it's a weakness of mine to which I'll readily admit.) Or Dick Cheney address the questions that former Bush advisor Michael Gerson raised in his book about compassionate conservatism and how things played out after Hurricane Katrina hit New Orleans. Former Presidents and Vice Presidents rarely "do" public introspection. I rarely see academic historians do it either, although there are some exceptions (Timothy Burke is a great example of an out of box thinker among scholars). But you, with your private sector perspective, offered me some interesting things to think about. So I thank you for responding to my initial comment.

Buddy Lehde - 4/30/2009

It is a fact that the Articles of Confederation refer to the “perpetual” nature of the Union no less than five times. In light of such importance, it must be considered intentional that the Constitution has not eve one reference to the Union being “perpetual.” Remember, the Constitution was written to REPLACE the Articles and to make it more palatable or agreeable to the States to ratify.

Concerning the 1876 Texas Constitution (current), Article 1 is the Bill of Rights. Section 1 of Article 1 reads: “Texas is a FREE and INDEPENDENT State, subject ONLY 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 of the States.” To me, two things are key in this statement. One, it states subject only to the Constitution, not the Articles of Confederation, not the US Congress and not the Presidency. Two, THE PERPETUITY OF THE UNION DEPENDS on the UNIMPAIRED right of local self-government.

Section 2 states that the People have the right to alter, reform or abolish their government.

And lastly, Section 29 reads “To guard against the transgressions of the high powers herein delegated, we declare that everything in this “Bill of Rights” is excepted out of the general powers of government, and shall forever remain inviolate, AND ALL LAWS CONTRARY THERETO, OR TO THE FOLLOWING PROVISIONS, SHALL BE VOID.”

(All caps are mine).

Donald Wolberg - 4/30/2009

Mr. Ledhe makes a fascinating analysis and enhancement of this very interesting issue from a number of prspectives. The discussion of the possibility is certainly worthy and one might wonder if "perpetual union" from the Articles of Confederation were instituted, would not a new and rather loose federation of Texas with the rest be possible as an outcome. Would this allow any opening for a regional "disunification" to be replaced by the "perpetual union" in the sense of the Articles?

cherish henning - 4/30/2009

I obviously wasn't around when all these documents were drafted, and argued in court, but I was at the San Antonio Tea Party, and I know for a fact that Perry wasn't.

This detail, falsely represented in this article is easy to verify, and only took place 15 days ago. How then can we trust the opinion of this person about what happened decades (or centuries) ago. By logic and reason the rest of the article can't be trusted.

I prefer to read the opinion of those who fact check, and verify their opinions prior to posting, rather than say whatever sounds good at the time.

Buddy Lehde - 4/30/2009

Your comment sounds like a knee-jerk reaction and not very well thought out. Since it could be taken as “tongue-in-cheek”, I would like to also supply a little insight as to what may happen (not quite tongue-in-cheek).
Are we going to have Texas Currency? Who will take it.? Of course we will need to print and coin our own currency. As to who would take it, it would be backed up in the same manner as the present U.S. currency. (Do you think that dollar bill in your pocket is worth gold? No, it’s backed by the “good will” of the U.S.)
Will oil companies want to be headquartered in Texas? They would be fools if they didn’t as the bulk of North American oil expertise is based in Houston. We will be having the Annual Offshore Technology Conference here next week which has world-wide attendance. You are welcome to attend.
Will I need a passport to go to Oklahoma? No, Oklahoma is with us.
No more money for schools and roads from D.C., right? Right. Texas would need to implement a tax (probably flat or consumption based) as we currently do not have a state income tax. Schools are a local issue anyway and of no business to D.C.
Who would the Cowboys play? Well, in addition to the Texans, we could start the San Antonio Vaqueros, Austin Liberals, maybe the Waco Baptists. We have enough football talent in the state to do so. Since Oklahoma would go with us (and probably Louisiana), there could be the Oklahoma Okies and the Saints. That’s seven and, if any other states as sympathetic to us, we could probably pick up a few more.
NCAA title game is political anyway so it wouldn’t matter. There is the old Southwest Conference schools plus others in states mentioned above.
We would manage.

Javier Ramirez - 4/30/2009

Thanks for the response, Mr Chamberlain. In regard to the question of force and secession what I meant to convey was that if a legal question is settled by the force of arms then sure it may be "settled" all right but its settled in the same way that a bully settles on the fact that you are going to give him your lunch money every day. Yes many things are settled by force but as the saying goes "might does not make right".

Even your example of nations coalescing is not without controversy over the legitimacy of some nations.

Im in general agreement with your other comments.

Buddy Lehde - 4/30/2009

The ‘70’s “Let’s secede and join OPEC” was about the same time bumper stickers appeared that read “Let the Yankees freeze in the dark” and “I wasn’t born in Texas but I got here as soon as I could.” All in jest although the later was probably more true. We have as much aversion to OPEC at the rest considering the company they keep. I cannot imagine an independent Texan sitting across the board room table from Chavez of Venezuela. As far at the freeze in the dark comment, that too would not happen for we do help our neighbor – it’s the Christian thing to do.

We are living in tremulous times and a solution needs to be found. The recent “Tea Parties”, ridiculed by some, are only the tip of the iceberg in what’s to come. From my point of view, these protests are not so much as the tax rate, but more on wasteful Federal government spending and the transferring of debt to later generations. They were not just in Texas but nationwide. We are not the only ones fed up. Secession? Not really in favor but if all else fails, it could happen, and not just with Texas.

Oscar Chamberlain - 4/30/2009

"It should be axiomatic to all would be historians that a legal question settled by force (i.e. civil war) is a question left unanswered."

Actually, in human history a number of legal questions have been settled by force. How do you think that other nations coalesced? Did that always happened in accord with law and tradition?

I do concede that one cannot absolutely rule out a change in our nation so profound that secession would begin to gain a new legitimacy beyond the fringe. As one of the other posters notes, drastic change does happen. I see no sign of it at this time.

Certainly, the discussion of it in Texas is no sign of a national trend. It comes out of the local political tradition. The "right of secession" and the perhaps clearer right to sub-divide into as many as five states, is a strong part of the local lore, often reinforced with various degrees of accuracy, in the public schools.

That it is one of the few states that, in terms of size and geographic location, could make a go of it alone helps to maintain what is essentially a sometimes pleasing fantasy. I know I sort of liked the mid-1970s "let's secede and join OPEC version" when I lived there. So I have no particular aversion to the rightwing variant that's out there, unless it starts inspiring people to take up arms.

Bob Buzzanco - 4/30/2009

Yeah, let's secede, but first we need to get in line to get our Tamiflu from CDC, then get on a federal highway out of town.

Texas, like most southern states, is a net recipient of federal aid. Northern states are in deficit. So the north subsidizes the south, but Texans want to secede.

Are we going to have Texas currency? Who will take it? Will oil companies want to be headquartered in the "country" of Texas? Will I need a passport to go to Oklahoma? No more money for schools and roads from D.C, right? And the Cowboys can't play in the Superbowl--but they'll have 16 games against the Texans--and UT can't win the NCAA title.

Sounds like a winner of a plan to me.

Buddy Lehde - 4/30/2009


I am in agreement with your post. History is a study of events; politics is a study of how those events affected, or will affect, future events. The study of events is a study of facts and should be presented as such; re-writing, or teaching, history to be politically correct or to inject personal bias does not change the fact that the event happened. What an instructor thinks of these events should have no bearing on how they are presented.

Although I do not hold a PhD, I’ve had a number of them work for me. As a group, I’ve found them to be non-productive, preferring to spend their time theorizing rather than producing. Being in private enterprise and not having the luxury of government grants, I am bound to produce quality work, on-time and within budget.

In my recent reply to Mr. Lust’s post on secession, I mentioned that I do not hold to his position on the Texas v White decision. I was unaware of his teaching position until I placed my reply. Thanks to Mr. Ramirez’s post, I was able to view Mr. Lust’s web site. I was appalled. From his emphasis placed on certain events, the personal bias shown, it appears evident that Mr. Lust has an axe to grind (along with a tremendous ego) and wants to shape others opinions to match his, whether factual or not. I suggest Mr. Lust vacate his teaching position and run for political office, starting with State Representative. There, he can free-wheel all he wants without causing much damage to young minds.

Per Fagereng - 4/29/2009

Historians should know by now that anything that's been done can be undone. Empires rise and fall, nations are made and unmade.

The logic put forth by Mr. Lust is like that of a church that allows marriage but not divorce. A foolish choice is sealed forever.
Nevertheless men and women do go their own ways with or without court approval.

Here's a possible future: Rising oil prices shrink long-distance trade and travel. Almost all the problems of our economy are dealt with at a local and state level. The federal government is mainly preoccupied with futile wars that no sane person wishes to fight. In such a case, states go their own way. They don't call it secession. They don't fight the federal government, they just ignore it.

Javier Ramirez - 4/29/2009

"Of course"? Spare us the bad comedy. Read my reply to Mr Lust.

Javier Ramirez - 4/29/2009

Mr. Lust thinks he is original in referring to Americans who attended the tea party as "teabaggers","chowderheads",and "hilarious". If this ad hominem writing is Lust's modus operandi than academia is in worse shape than I thought. You really should stop watching MSNBC.

First his treatment of secession was needless to say superficial. The issue of a state's right to secede is no more settled by a Supreme Court decision or civil war than the question of slavery was settled in the mid 19th century by Taney's court. It should be axiomatic to all would be historians that a legal question settled by force (i.e. civil war) is a question left unanswered.

The White decision under the extreme political partisan Chief Justice Chase was/is an example of a pathetic piece of legal reasoning.
Its main and often paraded statement "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" is to any lay person self-contradictory. If it is "complete" "perpetual", and "indissoluble" then why claim that a state can leave with the consent of the other states? Nonetheless, this is the same perpetual language used under the Articles and yet that union was clearly dissolved when Rhode Island refused to enter the new union for three years after it had been made. Clearly no one thought that this meant that the union was a binding one. John Quincy Adams stated nicely that "the indissoluble link of union between the people
of the several States of this confederated nation
is, after all, not in the RIGHT, but in the HEART"

I do not believe we Texans should secede, but we should defend an early form of federalism in which state's kept the federal gov't in check and not the other way around.

I want to make clear that my argument is that secession is historically and logically part of the earliest American tradition that Texas inherited. I don't believe that what is referred to as the "Legal Status of Texas" is relevant to it. I personally agree that Texas did not enter by treaty but by a joint resolution of the US congress and by convention in Texas. While not in my opinion strictly legal it's nonetheless a moot point now. However the idea that "perpetual" and "indissoluble" would have been understood as meaning unbreakable is on shaky historical grounds defended by a minority early on.

The idea as Mr Lust says that Texas' constitution says nothing of secession is equally pathetic reasoning. He has no understanding of secession. Secession is understood in law as a right inherit in the nature of a state. In other words this "it has to be spelled out" argumentation is another example of sloppy thinking. Mr Lust, for all his grandiose claims to being the "Greatest Historian Ever"
(no doubt tongue and cheeky but given some of his grandiose verbiage you have to wonder), is uninformed concerning the nature of constitution making. Not everything has to be or even should be spelled out in a written constitution. If you recall Mr Lust there were debates about that early on in the federal constitution convention. Secession is inherit in the nature of sovereign states.

Texas like the original colonies were sovereign and contrary to Mr Lust never surrendered such quality. What he and others confuse is the DELEGATION of certain powers but not the attribute of sovereignty. I directly challenge Mr Lust to point out anywhere in the Texas Constitution where such sovereignty is spelled out as being "surrendered" as he claims. He can't that's why he remarkably invokes the insular cases and the idea of "acquisitive prescription". But the insular cases dealt with US holdings acquired by force mainly after the Spanish War (i.e. Phillipines,Cuba,Puerto Rico, Guam, etc). This is NOT the situation with Texas annexation into the US. Does Mr Lust want to seriously defend the idea that a Republic voluntarily coming into the US is the same as being conquered? Be my guest. Perhaps that's why even those on Lust's side almost never resort to the insular cases in this regard. If he wants to say that Texas was conquered after the War then what happens to his precious White decision which he used to point out Texas wasn't a conquered province contra Chiles? This is amazing that someone working on Ph.D in history would make such an embarrasing argument.

I could go on but others have made rigorous legal, historical, and philosophical arguments for secession. It is a legal doctrine that is rooted in the great western political tradiition and inherited by the 13 colonies that excercised it in its break with Britain. It was first threatened not by the Deep South but by the deep north when New England threatened to withdraw in the early nineteenth century. The response by President Jefferson? "Let us separate". Its rooted squarely in his Declaration of Independence and Kentucky-Virginia Resolutions,and the federalist papers, etc.

As a side and irrelevant personal note, I too received my BA in history from UofH.

Ron Paul is on the side of solid history whereas Mr Lust is in left field somewhere in the business of misinformation.

My advice for your students is one given by the greatest of American philosophers of homegrown truths Mark Twain, if I may paraphrase, "Don't let Mr Lust's class interfere with your education"

Buddy Lehde - 4/29/2009

Mr. Lutz

I ran across your article on Texas secession where you mentioned the issue of secession was settled with the Supreme Court case of Texas v White (1869). I differ with you on the following accounts:

You are correct that the case was about the transfer of bonds and the ruling settled the transfer. However, the case was not about the legality of secession and no decision on secession could be rendered thereof. The opinion of Chief Justice Chase that Texas never left the Union was a justification for the Court to hear and rule on the case of bond transfers. This opinion is based on the phrase “perpetual union” as found in the Articles of Confederation, a document that preceded the U.S. Constitution. The Law of the Land is the U.S. Constitution, not the Articles it replaced, and is, or should be, the basis for all Supreme Court decisions. The Constitution is silent on the subject of States withdrawals and “perpetual union.” “More perfect” does not translate to “perpetual.”

Chief Justice Salmon P. Chase had been a member of Abraham Lincoln’s cabinet. Lincoln also believed in the “perpetual union” as found only in the Articles. This view differed from the prevailing view at the time by all the States, prominent legislators, newspapers and even earlier, the Founding Fathers. Virginia, New York and Rhode Island ratified the Constitution with the right of withdrawal and that right was accepted. Considering this, the opinion on secession given by Chase in the Texas v White case, sounds like a personal or political opinion, not legal one.

It is also noted that the previous year, 1868, the treason case against Jefferson Davis was dropped. Such a trial would certainly have settled the secession issue. Jefferson Davis wanted the case to go forward to put secession on trial. The case was dismissed by the Federal government as the same judge, Salmon Chase, said they would lose because nothing in the Constitution forbids secession.

A couple of other twists in the notion that Texas v White settled the secession issue. In June 1863, the northwestern portion of Virginia seceded from Virginia to form the State of West Virginia. This secession was allowed as it suited the northern cause. How can one section secede and another not? Also, Texas was readmitted to the Union in 1870 after the U.S. Congress (northern states only) approved the Federal military coerced Texas Constitution of 1869. If Texas v White was valid; that is, Texas never left the Union, why did it have to be readmitted?

The surest way this can be put to rest is by Constitutional Amendment. I seriously doubt if three-quarters of the States would ratify. I await your answers.


Donald Newton Langenberg - 4/29/2009

Given a little time, I believe I could persuasively demonstrate that our Union would be better off without Texas. I suspect I'm not the only American who could do that. That then raises the question, "Even if Texas cannot legally secede, could the rest of us eject it from the Union?" I'd be interested in Mr. Lust's view of history and the law on that question.

Frank Couvares - 4/29/2009

Of course, the arguments for secession are without historical merit. But don't tell `em -- please.

Oscar Chamberlain - 4/29/2009

Texan's have been discussing secession ever since they entered the Union. Heck, there was something of a movement in the mid-1970s, with the idea that the new nation could then join OPEC.

That the governor says that it's constitutional is only a source of alarm if he tries to call out the militia. Otherwise this is well within the peculiarities of the Texas political tradition.

My one regret: I do wish that Molly Ivins was still around to provide the accompaniment that all of this so richly deserves. And if there is a heaven for her where she can look down, she's popping a beer open and laughing right now.

James Lee Winningham - 4/28/2009

As to your first query, Texas desired annexation from the beginning of its days as an independent republic. They were only a republic to pass time until they could become a state. The author makes this clear, so you question about under what terms does the Constitution allow for the Congress to "annex" property of an independent nation is irrelevant as I see it. It is equivelant to paying someone who desires to give you his vehicle.

As to your second adn third query, article V in which Constitution I ask you? The authors' point is that the 1845 constitution is not the governing document of Texas. It is the 1876 constitution, so any reference to the 1845 constitution is wrong and misguided and it is scary that the governor to Texas doesn't appear to know this.

Bill Walker - 4/28/2009

As Texas was a republic for nine years, it follows it was an independent nation for that period of time.

Under what term of the Constitution is Congress allowed to "annex" property of an independent nation unless it is under eminent domain? If so, could the author please inform me of the price or amount that Congress authorized to the Republic of Texas for the purchase of its territory? I refer the author to almost all other property which the Congress purchased as proof that this principle is the only way the nation can legally expand; i.e., the Louisiana Purchase, the purchase of Alaska, Florida. But I am unaware of any Texas purchase.

Given that Article V allows for Texas or any other state, with its own consent, to remove itself from the senate, does this not in fact mean Texas can succeed from the government as it clearly is authorized by its own consent to do? I point out Texas v White did not address this issue.

if Texas negotiated a treaty with the United States and if such document allowed annexation then it follows Texas, as with all independent nations, has the authority to renegotiate its treaty does it not? For the treaty to remain viable, it must be continuous and if it is continuous does that not imply that two parties that made the treaty still must exist in order for the treaty to remain viable?

James Lee Winningham - 4/28/2009

The author did refute this. He sourced the 1845 Constitution and said there was nothing in the preamble that stated Texas could leave the Union. He also went on to say that even though they could perhaps interpret the 1845 constitution that way, Texas is now in the Union under the Constitution of 1876 that we had to write after the Civil War.

The author refuted the Texas entering and being governed by Treaty argument.

Maarja Krusten - 4/28/2009

My preference here on HNN is for (1) historical analysis or (2) straight up political advocacy.

This article would have been ok as a history piece if the author had focused on the historical angles he covered but left out chacterizations such as "hilarious" for the tea party events. I would have found it useful if a political scientist had written an overview article about how citizens have protested policies they don't support and the extent to which taxes have played a part in that. (Did anti-Vietnam or anti-Iraq war protestors yell about not using taxes to fund wars they didn't support, for example? If so, what was the response from the supporters of wartime Presidents, be it LBJ, RN, or GWB?) Or if a writer had examined the percentage of people from all parties who have grumbled "I want out" after elections. (How serious was the talk of moving to Canada by those who did not support GWB's policies, for example?)

There are any number of ways to look at dissent or the differing ways that individual members of the losing party work through their reactions after an electoral defeat. By examining issues over a period of time, from all angles, an historian or a political scientist or a communications expert could write a fine article about tactical moves or how to handle opposition or whatever. Mixing a few political or personal asides into what generally is a history article of this type doesn't work for me, however.

Melva Johnston - 4/28/2009

Texas is the only state to enter the U.S. by TREATY, (known as the Constitution of 1845 by the Republic of Texas to enter the Union ) instead of by annexation. This allows the Texas Flag to fly at the same height as the U.S. Flag, and may divide into 5 states.
Can you refute this?