Fact check: SCOTUS ruling, history contradict claim Texas has ‘absolute legal right’ to secede

Nate Trela, USA TODAY
·6 min read
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The claim: The Constitution creates an ‘absolute legal right’ to secede

A Feb. 24 Facebook video makes a claim about the ability of Texas to leave the U.S.

“Texas can absolutely, 100%, choose to leave the union,” Daniel Miller, president of the Texas Nationalist Movement, says in the video, referencing elements of the U.S. Constitution. “It is a choice for the people of Texas and the people of Texas alone.”

The video caption refers to it as an "absolute legal right to leave."

The video accumulated more than 10,000 views in 11 days.

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Our rating: False

The argument for secession is not nearly as clear-cut as this post asserts. The Supreme Court is the final authority on interpreting the Constitution, and an 1869 Supreme Court ruling held that secession is illegal. Historians and legal experts say the Civil War also established there is no “right” to secede.

Legal, historical precedents block secession

The question of whether Texas could secede has been largely academic for years, but the Texas State Republican Convention adopted a platform in June that called for a referendum “to determine whether or not the State of Texas should reassert its status as an independent nation.” State Rep. Bryan Slayton on March 6 introduced a bill to put the referendum on the November 2023 ballot.

In his video and an email to USA TODAY, Miller focused on two parts of the U.S. Constitution he says show indirectly that Texas has an “right” to secede.

He notes Article I, Section 10 of the U.S. Constitution lists acts that states cannot undertake, and secession is not on that list. He then notes that the 10th Amendment says the federal government only has powers spelled out in the Constitution or delegated by the states, which he says means the right to decide if a state would remain part of the U.S. is left up to each state.

But the issue of secession was more directly addressed elsewhere and has been settled for more than 150 years, according to legal historians and constitutional experts. The experts USA TODAY spoke to all said they did not see a right to secede in the Constitution, but most found historical and legal precedents that say there is no such right.

"Almost no lawyer would take that argument seriously," said Sanford Levinson, a government professor at the University of Texas School of Law. "I do believe it is viewed as a closed question."

The nation's highest court addressed this question directly in an 1869 case.

The Supreme Court case Texas v. White centered on Texas selling U.S. treasury bonds it held to fund its participation in the Civil War. The court ruled 5-3 that the sale by the state’s Confederate government was illegal because Texas’ secession was itself illegal.

“The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States,” wrote Chief Justice Salmon P. Chase. “There was no place for reconsideration or revocation, except through revolution or through consent of the States.”

James Wilets, a law professor at Shepard Broad College of Law at Nova Southeastern University, said the Constitution is silent on the issue of secession, but Texas v. White is clear there is no such right.

"And the Supreme Court is, for better or for worse, the last word on how to interpret the Constitution," he said.

In addition, late Supreme Court Justice Antonin Scalia, who favored a strict form of reading the Constitution known as originalism, said there's no legal basis for secession. Responding to a letter from a screenwriter working on a comedy dealing with secession in 2006, Scalia wrote he could not imagine such a case ever reaching the Supreme Court.

"I find it difficult to envision who the parties to this lawsuit might be," Scalia wrote. 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."

Civil War clarified there's no right to leave the union

Scalia said the last attempt at secession also established clear precedent.

"If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede," Scalia wrote in his 2006 letter.

An array of experts contacted by USA TODAY made the same point.

"The question of Texas secession was completely settled at the Appomattox courthouse in a case that might be called Grant v. Lee,” said Paul Finkelman, the Rydell visiting professor at Gustavus Adolphus College, referring to the surrender of Confederate Army Gen. Robert E. Lee that essentially ended the Civil War spurred by the attempted secession of Texas and other states.

Eric McDaniel, associate professor of government at the University of Texas at Austin, agreed.

“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," he told the Texas Tribune.

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Harvey Tucker, a professor emeritus of political science at Texas A&M University, also said the claim of an "absolute right" to secede overstates the legal position.

“Historically, past attempts by states to secede were contested by armies on battlefields, not by attorneys in courts,” Tucker wrote in an email.

A negotiated departure of Texas from the U.S. would likely require negotiations over “enormous amounts” of federal money spent on military bases, infrastructure and engineering that made parts of Texas habitable, Finkelman said.

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This article originally appeared on USA TODAY: Fact check: Civil War, Supreme Court ruling block states from seceding