Can a war settle a people's right to govern themselves?

No. A war decides who has the stronger army. It cannot make a law, and it cannot settle what a free people may decide for themselves.

A battlefield is not a legislature

Laws are made by writing them down and enacting them, not by winning a battle. The Constitution after 1865 says what it said before, and it contains no prohibition on a state leaving: it is silent on the question, and under the Tenth Amendment, powers not delegated to Washington are reserved to the states and the people. The federal government had the power to hold the union together by force. That tells you about its power. It tells you nothing about the right of a people to govern themselves.

Conquest cannot settle a question of right

If military victory could permanently settle a question of right, then every question of right is decided by whoever wins the fight. We reject that everywhere else. Conquest has never been a substitute for consent.

Today’s path runs through a ballot

Texas independence rests on the consent of the governed, decided by a free, fair, open referendum of every eligible Texan, of every race and background. It is settled at the ballot box, and nowhere else.

What the courts have said since

Texas v. White, decided in 1869, conceded the union could end “through consent of the States.” In 1905 the Supreme Court held in Jacobson v. Massachusetts that the Preamble, the very text cited for a permanent union, grants no power at all.

Self-determination is now international law

Since 1865, self-determination has become a cornerstone of international law, written into the United Nations Charter and into treaties the United States itself signed. Free peoples have voted on independence in Scotland, in Quebec, across the former Soviet Union, and in Britain’s exit from the European Union.

The bottom line

Whether Texans in the twenty-first century may peacefully vote on their own future is a question of consent, and the answer is yes.