Is it even legal?
Yes. It is legal, and it always was.
This is the objection you will hear more than any other, so it is the one to be ready for. Read this once and you can take it apart in a single sentence, or hold the ground for an hour. It is a Texas case by name, and it is aimed at every state. It does not do what they think it does.
If you only remember one line
There is no law against it. There is one old opinion, built on a bond case, undercut by a later ruling, and contradicted by the judge who wrote it. The reason there has never been a vote is not constitutional. It is political.
First, there is no law
Begin where the argument is strongest, because it is also the simplest. There is no clause in the United States Constitution that forbids a state from leaving. If there were, someone could show it to you. Article 1, Section 10 is the exact place the Framers listed what a state may not do, and they were thorough. A state may not make a treaty, coin money, keep troops in peacetime, or tax imports without the consent of Congress. The list is precise, and leaving the Union is nowhere on it. The Framers knew how to forbid a thing. They forbade many. They did not forbid this.
And the silence is not a loophole. In this system, the silence is the answer. The Constitution is a list of powers the states handed up to the federal government, and the Tenth Amendment settles everything else: the powers not delegated to Washington are reserved to the states and to the people. There is no delegated power to stop a state from leaving, and none to hold one by force. The power was never handed over. It stayed home. Your own state constitution almost certainly says the rest out loud, that all political power is inherent in the people, who may reform or abolish their government whenever they judge it right. That right is not Washington's to grant, and not Washington's to revoke.
Their whole case is one lawsuit about bonds
Press the objection and it always ends in the same place: Texas v. White, decided in 1869. Take that one case away and there is no law left to cite. So it is worth knowing what the case actually was. It was a lawsuit about bonds. Texas had been given five million dollars in United States bonds under the Compromise of 1850. Some were sold off during the war, and the Reconstruction government sued to get them back. The only question the Court had to answer was whether Texas was even allowed to bring the suit. Bonds, and standing. That was the case.
To settle who owned the bonds, Chief Justice Salmon Chase reached far past the question in front of him and declared that the Constitution had built “an indestructible Union, composed of indestructible States.” That sentence is quoted to this day as if it were the law of the land. It is not. It was not necessary to decide who owned the bonds, and a line a court does not need is not a holding. It is dictum, a comment, however grand it sounds. And here is the part the talking point always skips.
The sweeping line about a permanent Union survived. The one part of the case that was a real ruling did not.
Sixteen years later, in Morgan v. United States (1885), the Supreme Court overruled the actual bond rule that Texas v. White had been written to produce. The real holding did not survive. The famous flourish did, for one reason only: the question has never been put squarely to the Court again.
Chase had to break the record to write it
The reasoning underneath the flourish is weaker than the flourish. To call the Union “perpetual,” Chase had to claim the Constitution was merely an amendment to the old Articles of Confederation, and then ignore that only nine of the thirteen states were needed to ratify it, which would have shattered any perpetual union the Articles supposedly created. To call the states “indestructible,” he had to ignore the existence of West Virginia, carved out of Virginia during the war, and the terms of Texas's own admission, which allowed it to divide into as many as five states. He ascribed to the federal Union qualities usually reserved for a deity. It is advocacy in the shape of a ruling.
And the rest of the case is no sturdier
- 01
The dissent was never answered.
Justice Robert Grier dissented on all points raised and decided. He noted that the state before the Court had no senators, no representatives, cast no votes for president, and sat under military rule. Contemporaries across the old divide were united in contempt for the ruling, and Senator Lyman Trumbull moved legislation declaring that the courts have no authority to decide political questions at all. The ruling was contested the day it was issued and has been ever since.
- 02
The judge built the thing he was defending.
Chase had been Abraham Lincoln's Secretary of the Treasury. He personally created the war bonds, the greenbacks, and the national banking system, the entire machine that depended on the Union being permanent. Then he climbed onto the bench and ruled it permanent. No man is neutral about the legality of the system he built with his own hands.
- 03
The Court is not infallible.
The same institution once upheld slavery and racial segregation. Both were later overturned. A ruling does not become truth because nine appointees signed it, and a Court that has been catastrophically wrong before is not a wall.
- 04
The rest of the legal world moved the other way.
In 2010 the International Court of Justice held that international law contains no prohibition on a people declaring their independence. Canada's own Supreme Court held that a clear vote to leave creates a binding duty on the other side to sit down and negotiate. Britain left the European Union by a vote. The current runs toward the right of a people to decide, not away from it.
- 05
Even its author left the door open.
In the same opinion, Chase conceded that the bond could still be undone through the consent of the States. The case built to lock the door describes a key sitting in the lock. It undercuts itself in its own text.
It was never a legal question
Step back and the deepest point comes into view. Whether a people may govern themselves was never a question for a court in the first place. It is a political question, and it belongs to the people, not to nine appointees in Washington. The federal government knows this, because it argues the other way when the other way suits it. It argued for the right to declare independence at the International Court of Justice in the Kosovo case, and it has signed treaty after treaty pledging to respect the right of self-determination. The legal smoke clears to reveal a political choice, one your state has simply never been allowed to make at the ballot box.
The answer, in one breath
So do not let the objection stand. It smuggles in the idea that a vote today is the war of the 1860s. It is not. That was a break by force. This is a ballot, and then a negotiated separation, the way Britain left the European Union and the way Scotland and Quebec put the question to their own people. A court case about a war does not govern a vote, and no ruling, however old, can stand above the right of a people to govern themselves.
There is no law against it. One old opinion, built on a bond case, undercut by a later ruling, and contradicted by its own author. The barrier is not constitutional. It is political, and political problems have political solutions.
The full constitutional argument is the subject of Daniel Miller's forthcoming book, The Tethered Sovereign. Now you have the short version. It is legal. It always was.