They tell you Texas can't leave. They're wrong.

The argument you will hear

"Not so fast. What about the Supreme Court case of Texas v. White? Didn't that say secession was unconstitutional? So Texas can't legally leave the Union."

The answer

The whole legal argument for the unconstitutionality of a state leaving the Union rests on one thing: the Supreme Court's 1869 decision in Texas v. White. Take that one case away and the opposition has no law left to stand on. So let's deal with it directly.

When the question comes up, more and more academics are adopting the stance of historian Dr. Brion McClanahan. Asked about Texas v. White at an academic conference in Florida, his response was an indignant "So what?"

That is not a denial of the facts. It is the opposite. Texas v. White has been debated and debunked extensively, starting from the moment Chief Justice Salmon P. Chase issued the majority opinion. The "settled law" everyone invokes was contested the day it was handed down, and it has been losing ground ever since.

Here is why.

The case was about bonds, not secession

Start with a fact almost no one who cites Texas v. White will tell you: the case was not about the right to leave the Union. It was about bonds.

In 1851, Texas received $5 million in United States bonds under the Compromise of 1850. During the war, the Confederate state government sold some of them. After the war, the Reconstruction government of Texas sued to get them back. The only question the Court had to answer was whether Texas had standing to bring that suit, and that turned on whether Texas still counted as a "state" for the purpose of the Court's jurisdiction. Bonds, standing, jurisdiction. That was the case.

To decide it, Chief Justice Chase needed to find that Texas was a state, and he had narrow ways to get there. He could have ruled that Texas was a state because the President, the Congress, and the Army were already governing it as one. He could have ruled that Washington could not impose every obligation of statehood on Texas and then turn around and deny it was a state the moment Texas tried to assert a right. Either path resolves the bond dispute.

He took neither. He chose the widest ground available and declared that the Constitution had created "an indestructible Union, composed of indestructible States," that no state could ever leave, for any reason, for all time. He wrote an entire theory of the Union into a case about who owned $135,000 in bearer bonds.

This is where the doctrine quietly comes apart. The holding of a case is the narrowest reasoning a court needs to settle the dispute in front of it, and only the holding binds future courts. Everything a court says past that point is dictum. It can be eloquent, it can be quoted for a century and a half, and it is still not binding law. The "indestructible Union" language was not necessary to decide who owned the bonds. It was dictum.

And here is the part its defenders never raise. Sixteen years later, in Morgan v. United States (1885), the Supreme Court overruled the actual bond rule that Texas v. White was built to reach. The one holding the opinion existed to deliver did not survive. The sweeping language about secession did, and not because any court ever tested it or reaffirmed it as a holding, but because the question has never been put squarely to the Court again since 1869. It has been quoted in passing. It has never been held. That is the "settled law" you are told to accept: dictum, from a bond case, whose central rule was later overruled on its merits.

1. It was not unanimous, and the dissent said so plainly.

The dissenting opinion was issued by Justice Robert C. Grier, who disagreed "on all points raised and decided." That is not a quibble around the edges. That is a sitting justice rejecting the entire ruling.

Grier did not dissent out of any sympathy for the Confederacy. He dissented because he would not call a military occupation a state. In April 1869, Texas had no senators, no members in the House, and had cast no votes in the last presidential election. It was run as a military district under a general who answered to the Army, not to Austin. Grier looked at that and wrote that the matter should be "decided as a political fact, not as a legal fiction." Congress had already said as much: under the Reconstruction Acts it had declared that no lawful state government existed there. As Grier put it, "I am not disposed to join in any essay to prove Texas to be a State of the Union, when Congress have decided that she is not."

He also caught the contradiction at the center of the case. Texas claimed to be a state so that it could sue, while arguing it had not been a state during the war so that it could void its wartime contracts. Grier's answer still lands: Texas "cannot, like the chameleon, assume the color of the object to which she adheres," a state in the Union that was never out of it, and yet not a state at all for four years. He closed with the line the doctrine's defenders never quote: "neither my reason nor my conscience can give assent to it." He was outvoted. He was never answered.

And the contempt was not confined to the bench. Chase's assertions were so offensive to his contemporaries that Union and Confederate sympathizers, both fresh from the battlefields and still carrying deep divisions, were united in their disdain for the ruling. You will be told this case settled the matter for everyone. It did not even settle it for the people who had just finished fighting the war.

2. The Court made it up, and a U.S. Senator called it out.

There is no clause in the United States Constitution forbidding a state from leaving the Union. There is no statute. To get to the answer he wanted, Chief Justice Chase, an appointee of Abraham Lincoln, used Texas v. White to stamp a retroactive "seal of approval" on the federal government's Civil War policies. To do it, he had to rewrite history and nearly all the established law on the subject.

To reach his "perpetual union," Chase had to argue the absurd: that the United States Constitution was merely an amending document to the Articles of Confederation, and he hung the whole thing on a phrase from the Preamble. He had to ignore that it took only 9 of the original 13 states to ratify the Constitution of 1787, which by his own logic would have shattered any "perpetual union." He had to ignore West Virginia. He had to ignore the agreement, made when the Republic of Texas was admitted, that Texas could divide into as many as four additional states.

This is the heart of it. In his zeal to confirm the supremacy of the Union, Chase ascribed to it qualities usually reserved for deities, building a quasi-religious orthodoxy that elevates the federal government to godhood, its three branches to the Holy Trinity, and the judiciary to its priesthood.

Bristling at this usurpation by the judiciary of the power to decide political questions, Senator Lyman Trumbull of Illinois introduced legislation stating, in part:

"Under the Constitution, the judicial power of the United States does not embrace political power, or give to judicial tribunals any authority to question the political departments of the Government on political questions."

A sitting U.S. Senator, in 1869, looked at Texas v. White and said the Court had reached for power it does not have.

3. Embracing Texas v. White requires you to believe the last 150 years never happened.

This is the part its defenders glide over, because it is the ruling's most significant problem.

Since 1869, the world kept spinning. The Supreme Court has gone right on issuing rulings that chip away at the foundations of Texas v. White. Chase's entire determination rests on the claim that "perpetual union" is the "more perfect Union" of the Preamble. But in the 1905 case of Jacobson v. Massachusetts, the Court held that the federal government can gain no powers from the Preamble. That single ruling could utterly destroy Texas v. White. You cannot hold that the Preamble is binding authority (Chase in 1869) and that the Preamble grants no power (the Court in 1905). One of them is wrong, and the later one is the law.

The Court has never been infallible, and pretending otherwise leads somewhere ugly. To imbue it with infallibility is to say that when it upheld slave-catching, it was right, and when it upheld racial segregation, it was right. Both of those decisions were overturned. Even Justice Oliver Wendell Holmes, Jr., in the 1904 case of Northern Securities Co. v. United States, recognized that the Court gets swept up in the passions of the day:

"Great cases like hard cases make bad law. For great cases are called great, not by reason of their importance ... but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment."

Texas v. White was a great case in exactly Holmes's sense. A war had just ended. The feelings were overwhelming. The judgment was distorted.

4. This was never a question for the courts in the first place.

Here is the line the doctrine will not say out loud: any question of self-determination is political in nature. It is not, and never will be, a judicial question.

Whether a people may govern themselves is the political question par excellence. It belongs to the people, not to nine appointees in a building in Washington. The federal government's own position on self-determination has evolved to the point of signing international agreements, covenants, and treaties pledging to respect that right. Recognizing all of this, and hoping to avoid a serious examination of Texas v. White, opponents usually change the subject fast.

5. "The Civil War settled it" is not a legal argument. It is a threat.

When the case falls apart, the fallback is some version of what Justice Scalia wrote to an aspiring screenwriter: "If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede." The scholar Paul Finkelman put it more bluntly in the New York Times, claiming the question "was permanently settled by the 'legal case' of Lee v. Grant, decided at Appomattox Court House in April 1865."

Let's be honest about what that is. The claim that a state cannot lawfully leave the Union is a point of law. It can be discussed, debated, and resolved. "Lee v. Grant, decided at Appomattox" is something else entirely. It is a thinly veiled threat of violence, the kind of tactic used by bullies, by abusers of women and children, and by tin-pot dictators propping up tyrannical regimes.

And it collapses under its own logic. If military conquest in the 1860s is the moment a political question becomes "settled," then every political question is permanently solved by force. Run that principle through the 20th century. When Germany invaded Poland, the response was not "I guess that settles that." When Japan took the Philippines, MacArthur said "I shall return," not "the Philippines are now an indivisible part of the Empire of Japan." Conquest does not settle the right of a people to govern themselves. It never has.

There is a simpler tell. If the Civil War truly settled this, no one would still be arguing about it. It would just be a fact. Establishment politicians, academia, and a lazy media throw around "consensus," but the academic community has held conferences on the right of secession and self-determination for decades. If the war definitively ended the question, the scholars never got the memo.

What actually matters

The Texit question is not left to academics and their theory. What matters most is not whether the Civil War settled it, but whether the people of Texas believe a question was settled that they have never actually been asked. More and more Texans have stopped accepting the result of a 19th-century war as the final answer to a 21st-century question.

The Texas Constitution, Article 1, Section 2, is the only authority on this point that was written by Texans, ratified by Texans, and still governs Texans:

"All political power is inherent in the people ... they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient."

That sentence does not contain a footnote that says "except if the Supreme Court of a federal system doesn't like it."

So what now?

The Supreme Court is not stopping the vote. The Texas Legislature is. The path to put Texas independence on the ballot is the Texas Independence Referendum Act, and the political will is building behind it: 257 officials and candidates have signed the Texas First Pledge committing to put Texas first.

The reason there has been no vote is not constitutional. It is political. And political problems have political solutions.

You can be one of those solutions.