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National Divorce? If States Want To Leave, They Have The Power!

Those opposed to states leaving the Union think it is illegal – they shouldn’t be too sure. Dr. Matt Qvortrup breaks down Texas v White and the arguments against national divorce.

The recent British Supreme Court judgment on the Scottish independence referendum has people questioning what would happen if American states tried to leave the Union. It was a unanimous decision that the Scottish parliament has no right to host an independent referendum. Would their decision mirror what would happen in America if states like Texas, want to depart from the union?

I was catching up with an old friend from Alabama, who made a comment that in the United States, secession matters would not even make it before the courts. He continued to cite Texas v White, which most believe makes leaving the Union impossible. His thought process, although common, is not entirely correct.

Nearly 20 years ago, in late 2006, an Alaskan resident named Scott Kohlhass drafted and submitted a ballot initiative calling for Alaska to secede from the United States. Though proper procedure was followed, the state’s lieutenant governor declined to certify it. When Kohlhaas sued, the Supreme Court of Alaska decided such a vote would be illegal. In this case – it is called Kohlhaas v Alaska – the judges relied entirely on Texas v White.

So what did they, like almost everyone else, get wrong about Texas v White?

The matter of Texas v White (1869) is a case where an off-the-cuff remark was blown out of all proportion.

In Anglo-Saxon legal systems, such as that of America and Britain, the law is not just what is decided by the legislature. Rather, judges decide the fine points gradually as they must deal with concrete cases. Most importantly, their decisions create precedents.

This is easy if the judges make pronouncements on the issues which come before them. But sometimes, they make remarks, which are then used in subsequent cases. These ‘by-the-by’ mentions are what lawyers call obiter dicta.

Texas v White was about a technical public finance matter. The government of Texas claimed that United States bonds owned by Texas since 1850 had been illegally sold by the Confederate state legislature during the Civil War.

In Texas v White, the chief justice mentioned as an obiter, that Texas was part of a perpetual union, and hence the actions of that state during the civil war were therefore void.

This judgment seems to follow a rather worn and standard legal argument that any public body can only act if they have been granted specific powers. Basically, if it’s not allowed by the constitution, it is illegal – or what we, in the legal profession, call ultra vires.

The issue is that the decision was based on a “constitution” that had already been superseded decades before the ruling of Texas v White.

Salmon P. Chase – the Chief Justice of the US Supreme Court at the time – based his decision on the Articles of Confederation, the treaty that bound the Thirteen States together before the 1787 US Constitution. As an analysis made clear, the enactment of the US Constitution means that its predecessor is legally void. It is elementary that you cannot base a judgment on a law that is no longer in force.

For state and federal courts to not acknowledge this key information is an embarrassment.

But there are other grounds for revising the near-religious faith with which some regard Texas v White. The belief that departing from the Union via national divorce is illegal and unconstitutional is not shared by eminent international lawyers.

Professor Peter Radan, arguably one of the World’s leading international legal scholars, takes the view that secession is not illegal. As he wrote in an academic and peer-reviewed article:

The decision in Texas v White only renders unilateral secession illegal and leaves it open for constitutionally legal secession to take place. Thus, the decision in Texas v White was not a basis to conclude that secession was unconstitutional and therefore not a basis upon which the Alaskan Supreme Court could properly rule against the holding of a popular referendum on a possible secession of Alaska from the United States.

So, the legal arguments are – at the very least – a bit more nuanced. Or, should we say, unclear?

When matters are unclear, there is a case for the Supreme Court to take a second look and possibly reverse the original decision. This, as most readers are probably aware, is what happened in 2022 when SCOTUS reversed Roe v Wade and Planned Parenthood v Casey in Dobbs v Jackson Women’s Health Organization and ruled that there is no constitutional right to abortion.

The legal basis of Texas v White is far less solid than Roe v Wade. Legally, there is a strong case for taking a second look. The judges at 1 First Street, NE Washington may soon get a chance if Texas Nationalist Movement v Meta – as seems likely – goes all the way to Washington.

To conclude that Texas – and any other state of the current Union – could withdraw from the union does not mean they should. An ‘is’ does not imply an ‘ought’. But if we live in a country under the Rule of Law, due process is a fundamental right. Whether there should be a referendum on independence is a political question. But at the very least, it seems reasonable to determine if such a vote would be legal. To do otherwise would be against the tenor of the doctrine of self-determination, which lies at the heart of US foreign policy. When Ukraine was invaded by Russia, President Biden supported the Ukrainians right to self-determination.

You cannot have a different set of principles abroad than you have at home.

A lawyer and a political scientist, Professor Matt Qvortrup, Coventry University, England is author of I Want to Break Free: A Practical Guide to Making a New Country

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