Can Texas get constitutional permission to leave the Union?

THE STATEMENTS AT ISSUE:

"I am completely aware that Election Day was a catalyzing moment, but I do not believe that the underpinnings of this are solely about Barack Obama. This cake has been baking for a long time — it's the Obama administration that put the candles on the cake and lit it for us."

—Daniel Miller, president of the Texas Nationalist Movement, in a comment November 13 to the online journal Politico after his organization's petition seeking to have Texas secede from the Union had gathered nearly 100,000 signatures.

"Governor Perry believes in the greatness of our Union and nothing should be done to change it. But he also shares the frustrations many Americans have with our federal government."

—Catherine Frazier, spokeswoman for Texas Governor Rick Perry, in a comment November 13 to The Dallas Morning News in reaction to the secession petition.

WE CHECKED THE CONSTITUTION, AND…

No state, however frustrated some of its citizens may be with the present state of govenment in America, is going to be able to leave the Union and go its own way. That is one of the most firmly settled issues on the meaning of the Constitution.

If the Civil War did not settle it on the battlefield, and it almost certainly did, the U.S. Supreme Court put it completely to rest constitutionally, 143 years ago. And it did so in a case involving the state where the idea of secession now seems to be attracting the biggest public following: Texas.

As of Wednesday, a petition sponsored by Mr. Miller's organization, asking the government to "peacefully grant the State of Texas to withdraw from the United States of America and create its own NEW government," had attracted more than 100,000 signatures. It is posted on a White House website, "We the People," set up to give "all Americans a way to engage their government on the issues that matter to them."

A number of secession petitions are posted on that site—from citizens living in states from Maine to Hawaii—but none has proven to be anywhere near as popular as the one from Texas. All of the petitions are posted at this link on the White House website: petitions.whitehouse.gov.

While the Texas governor is now opposed to that move, three years ago he himself suggested that the idea might be worth considering. And it is an idea that, at least among some Texans, has shown considerable staying power.

Texas did attempt to leave the Union, on February 1, 1861, when a special convention called for that purpose approved an "Ordinance of Secession." It thus aligned itself with the Confederate States of America, and supplied troops to fight with rebel forces.

After the Civil War ended, a dispute over bonds issued in Texas during that war went to the Supreme Court in the case of Texas v. White. The decision that resulted established a constitutional principle of Union that has never been seriously questioned since: Texas, and the other states that had attempted secession, had never left the Union, because they could not, the Court concluded.

Chief Justice Salmon P. Chase wrote: "When Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the state. The Act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final."

With constitutional language like that, no modern Congress, or president, could believe that the national government had it in its power to grant a request for secession, however peacefully proposed. The fact that the White House has invited citizens to publish proposed petitions, like the Texas secession proposal, on a government website obviously does not create the authority to carry out a petition demand that runs counter to the Constitution.

Could the Constitution be amended to add a "permission to secede" provision? If one assumes—contrary to all political reality—that such an amendment could get two-thirds approval in both houses of Congress, it would be close to foolhardy to suggest that three-fourths of the states—that is, at least 38—would ratify it.

Why not? In order to overrule Texas v. White by constitutional amendment, a secession proposal would have to modify the very Preamble of the Constitution, in which the nation's people created "a more perfect Union," and would have to wipe out the guarantee in Article IV of a "republican form of government" in each state. Those were the provisions of the Constitution on which the Supreme Court relied in 1869. And the nation's people deeply revere those constitutional commitments.

Talk of secession, at least in some parts of the present Union, may well be an outlet for frustration with the way things are going in Washington, but such talk is a pipe dream, constitutionally speaking.

Lyle Denniston is the National Constitution Center's Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.