Did you know I have been wondering about that for years? I know nothing of Texan constitutional law, and had no idea how that got put into the Texan constitution.
Here’s that case I was thinking about by Justice Holmes. I was, of course, having a brain fart about federal court power to interpret state laws in the first instance. These days, federal appeals courts frequently ask the state courts to resolve crucial questions of state law by submitting certified questions; that was not, however the case in the 19th century.
Nevertheless, having just re-read White, I still don’t see the slightest support for the argument that Texas’ secession was only illegal because it was effected by the people of Texas rather than the legislature. To borrow your murder analogy from above, imagine that the Supreme Court mentioned a defendant killed his victim with a shotgun, then affirmed his conviction for murder. It would clearly be erroneous to argue, in a subsequent case, that the second defendant couldn’t be guilty of murder because he killed his victim with a knife, wouldn’t it?
Why then, in the absence of any indication that the Court’s reasoning is dependent in any way upon the method by which Texas purported to secede from the Union, do you think it is persuasive to distinguish White in such a manner?
Incidentally, I for one am glad Scott Dickerson posted the information he did, especially that bit about Article I, section 10. That’s some good reading there, SD!
Not that distant, fchick, unless you are very young - there was a strong secessionist movement in 1987, which I flirted with in my university days: and in 1992 or thereabouts a State Liberal Minister denounced the federation and advocated secession, which made the front page of the newspapers, because of federal native title laws which were disrupting the mining industry. I remember booing Peter Garrett at a Midnight Oil concert in 1987 when he disparaged the right of Western Australians to secede. Western Australians claim the right to secede on the basis that we contribute 40% of the countries economy, and get far less than our proportinate tax back from the central government. Without the benefit of youth, that doesn’t seem like a very valid reason anymore.
It was very strong in the late 1970s, and also in the 1930s - from vague and unreliable memory, the State wrote to the King of England asking for permission to secede, and he refused.
Back in the 1870s or thereabouts, residents in the Goldfields in Western Australia wanted to secede into a state called “Aurora” or “Aurelia”, but it didn’t get anywhere.
The short answer, Dave, is that it’s not in the Texas Constitution at all. It’s allegedly a provision in the U.S. legislation admitting Texas as a state, although I have never actually read any law giving Texas the right to split into as many as five states. Even if such a provision exists, there may well be restrictions on its exercise that prevent it from happening today. But if anyone can find it, please post it.
I don’t quite follow. Do you have a link or a citation for a Texas State Constitution which explicitly says the state has the right of either secession, or of dividing itself into multiple states? Just quickly looking around at the constitutions on the site linked to by Captain Amazing, the closest thing I see is Section 1 of the the Bill of Rights (Article I) of the current (1876) constitution:
On the one hand, it’s “free and independent”, but on the other hand it’s “subject to the Constitution of the United States”.
However, there’s a lot of constitutions there, and maybe I missed it.
And I see that minty green already answered my question. Darn these two-page threads anyway; ya can’t see what other people have already said.
Meant no offense, Houlihan; my remark about all the weight being to one side and none to the other obviously wasn’t fair to you. I do think that with the exception of that final, regretable fillip, my post consisted of direct citations from the Articles and the Constitution, all of them relevant to the question asked by the OP (as to whether the Constitution is silent on the matter of secession). I say the question is addressed in a number of places therein; and note that the Tenth Amendment does not use terms like “espressly” or “explicitly” with respect to those powers delegated to the federal government. A classic example of the presumed-legitimate use of what I called implication and common-sense in understanding the Constitution is granting the President the power of Commander-In-Chief over an Air Force (or an antimissile defense system, etc.)–not just the expressly stated “Army and Navy.” I’m not “debating” as to which mode of Constitutional understanding is good or bad, only noting some factual bases for what I take to be the more conventional point of view.
I’m working from memory here, but my understanding of the Texas issue is that they don’t actually have the right to secede or break up into five states (nor did they prior to Reconstruction). As I recall, Texas was an unusual situation when it joined the United States because it was a recognized sovereign nation rather than an American territory as all previous states had been when admitted (excepting the original thirteen obviously). So a committee of Texans and Americans was appointed to work out a treaty to join Texas to the US as a state. This treaty included the provisons for independance and division that people are talking about. However, before the treaty was officially ratified, the Texas legislature and American congress both passed bills declaring Texas was a state. So legally speaking, Texas became a state by legislative action and the treaty was moot.
Thanks, Dave Stewart,I didn’t realise there was so much of a latter-day thing! unfortunately, the politics part of The West Australian bored me stupid when I was in primary school…
You know what would be cool, is if there was some forgotten old treaty someplace that says Vermont has the right to divide itself into, like, thirteen states.
Don’t worry, the West bores everyone stupid.
Thank you everyone for clearing up the Texas thing, too.
Cool, now if Minty and I can just agree to disagree, all will be right with the world. 
I thought I had already posted this link about the purported right of Texas to divide itself into five parts, but I guess I only meant to: http://www.urbanlegends.com/politics/texas_secession.html The joint resolution annexing Texas contained the language
You may indulge yourselves in interpreting this passage, because I’m . . .
[/quote]
. . . moving this thread to Great Debates.
bibliophage
moderator GQ