The Constitutional legality of secession has been roundly debated on this forum and several other strings.
There is no provision in the Constitution for doing so, even though secession was a hot topic during the writing of the Constitution. The founders and ratifiers were well aware but chose not to enumerate it.
The core reason is that when any territory or country, as in the case of Texas, joins the Union, by consent of Congress, the people of the new State are no longer citizens of that State, they are citizens of the USA.
Their USA citizenship cannot be taken away by the State due to an act of secession. Citizenship rights can only be limited by being guilty of a felony, that is a power given to States.
Any change in USA citizenship to a foreign country citizenship can only be done by the USA, through Congress.
Remember, States do not have rights, they have powers, only citizens have rights protected directly by the federal government and Constitution.
1776 to 1787. Can you remember something of major significance in your life that happened 11 years ago? Something earth shattering?
The Chair now recognizes the Gentleman Benjamin Franklin from the state of Pennsylvania to speak on this issue, followed by the Gentleman Roger Sherman of Connecticut, followed by the Gentleman John Hancock of Massachusetts, followed by the Gentleman Francis Lightfoot Lee of Virginia, and so forth and so on:
“We therefore . . . that these United Colonies are, and of Right ought to be Free and Independent States . . . and to do all other Acts and Things which Independent States may of right do.”
There is no provision in the Constitution for doing so, even though secession was a hot topic during the writing of the Constitution. The founders and ratifiers were well aware but chose not to enumerate it.
The Founders did discuss secession, or disunion as they called it, and they did describe the conditions under which it was permissible - just not in the Constitution itself. The following post is necessarily long. Sorry, bear with me.
Ratification Conventions - About as close to original intent of the Constitution as you can get.
Well, to be clearer, the state Ratification Conventions and the 1787 Constitutional Convention in Philadelphia all offer original intent of the Constitution.
Here is what James Madison, the so-called Father of the Constitution, said about how to interpret the intentions of the Constitution (Source: Madison's letter to M. L. Hurbert, May 1830, my emphasis below):
But whatever respect may be thought due to the intention of the Convention, which prepared & proposed the Constitution, as presumptive evidence of the general understanding at the time of the language used, it must be kept in mind that the only authoritative intentions were those of the people of the States, as expressed thro' the Conventions which ratified the Constitution.
No doubt you, gandalftb, are aware that three states said people could resume or reassume their powers of government. Here are excerpts from the ratification document of New York which was passed by the New York Ratification Convention [Link]
Ratification of the Constitution by the State of New York; July 26, 1788.
WE the Delegates of the People of the State of New York, duly elected and Met in Convention, having maturely considered the Constitution for the United States of America, agreed to on the seventeenth day of September, in the year One thousand Seven hundred and Eighty seven, by the Convention then assembled at Philadelphia in the Common-wealth of Pennsylvania (a Copy whereof precedes these presents) and having also seriously and deliberately considered the present situation of the United States, Do declare and make known. ...
That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; ...
... Under these impressions and declaring that the rights aforesaid cannot be abridged or violated, and that the Explanations aforesaid are consistent with the said Constitution ... We the said Delegates, in the Name and in the behalf of the People of the State of New York Do by these presents Assent to and Ratify the said Constitution.
I provided a link to the entire NY ratification document above because, in addition to listing a condition for reassuming their own governance, it explains what the Constitution means on other important topics such as the right to bear arms and which part of government is empowered to authorize the suspension of habeas corpus, etc. Take a look at what the New Yorkers said the Constitution meant.
Alexander Hamilton and John Jay were members of that ratification convention and voted for the NY ratification document linked to above. Hamilton and Jay were two of the three authors of the Federalist Papers (Madison being the other author) that explained to the public what the Constitution meant. Jay was the first Chief Justice of the US Supreme Court.
Rhode Island had a similar reassumed statement in their ratification document:
That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness.
The Virginia ratification document was written by a committee of five Federalists that included James Madison and John Marshall. As I said above, Madison was the other author of the Federalist Papers along with Hamilton and Jay. Marshall was the fourth Chief Justice of the US Supreme Court (1801-1835). Here is an excerpt of what the committee of five wrote and what the Virginia Ratification Convention passed:
We the Delegates of the people of Virginia, duly elected in pursuance of a recommendation from the General Assembly, and now met in Convention, having fully and freely investigated and discussed the proceedings of the Federal Convention, and being prepared as well as the most mature deliberation hath enabled us, to decide thereon, DO in the name and in behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them and at their will: ...
The Virginia statement above was included by Virginia in their 1861 secession ordinance.
From the Richmond Dispatch of March 25, 1861:
Tradition says of the men she elected to the Convention called to pass upon it, a majority were pledged to vote against its adoption. It is certain that a majority of the body did vote against the ratification at one time; and that not until a clause was inserted in the ordinance of ratification, protesting that Virginia would resume the powers granted when they should be perverted to her injury and oppression, was the small vote obtained in its favor, of 89 to 79.
None of the three resume/resume statements above were conditional. They were expressions of what the Constitution meant with regard to secession. Those three resume/reassume statements were accepted by the other states of the Union. At least, I know of no effort to refuse to accept the ratifications of those three states by the ten other original states.
Let's look at some other statements made in the Federalist Papers, the state Ratification Conventions, and the 1787 Constitutional Convention in Philadelphia.
John Marshall: "The state governments did not derive their powers from the general government; but each government derived its powers from the people, and each was to act according to the powers given it. Would any gentleman deny this? He demanded if powers not given were retained by implication. Could any man say so? Could any man say that this power was not retained by the states, as they had not given it away? For, says he, does not a power remain till it is given away?"
John Marshall: "[w]e are threatened with the loss of our liberties by the possible abuse of power, notwithstanding the maxim, that those who give may take away. It is the people that give power, and can take it back. What shall restrain them? They are the masters who give it, and of whom their servants hold it."
John Marshall: "the people hold all powers in their own hands, and delegate them cautiously, for short periods, to their servants."
James Madison: In the VA ratification Convention, Madison responded to an argument by Patrick Henry who worried that there were seven Northern states and six Southern states, and that Northern states could therefore pass things that were against Virginia's interest. Madison said [emphasis mine}:
An observation fell from a gentleman, on the same side with myself (rustbucket: i.e., the ones who, like Madison, wanted to ratify the Constitution) which deserves to be attended to. If we be dissatisfied with the national government, if we should choose to renounce it, this is an additional safeguard to our defence.
At no time did the Constitution Convention in Philadelphia draft legislation requiring the consent of any states for a state desiring to secede. Republicans tried and failed to pass amendments requiring that in 1860 and 1861. Here from the Aug 23, 1787 minutes of the Constitution Convention in Philadelphia is a motion by Madison that failed 8 states to 3 states. [Link]:
Mr. MADISON. As the greatest danger is that of disunion of the States, it is necessary to guard agat. it by sufficient powers to the Common Govt. and as the greatest danger to liberty is from large standing armies, it is best to prevent them, by an effectual provision for a good Militia.
On the Question to agree to Mr. Madison's motion
N. H. ay. Mas. no. Ct. no. N. J. no. Pa. no. Del. no. Md. no. Va. no. N. C. no. S. C. ay. Geo. ay.
Alexander Hamilton: Hamilton warned in the New York Ratification Convention:
"It has been well observed, that to coerce the States is one of the maddest projects that was ever devised. A failure of compliance will never be confined to a single State. This being the case, can we suppose it wise to hazard a civil war? Suppose Massachusetts or any large State should refuse, and Congress should attempt to compel them, would not they have influence to procure assistance, especially from those States which are in the same situation as themselves? What picture does this present to our view? A complying State at war with a non-complying State; Congress marching the troops of one State into the bosom of another; this State collecting auxiliaries, and forming, perhaps, a majority against its federal head. Here is a nation at war with itself! Can any reasonable man be well disposed towards a Government which makes war and carnage the only means of supporting itself -- a Government that can exist only by the sword? Every such war must involve the innocent with the guilty. This single consideration should be sufficient to dispose every peaceable citizen against such a Government."
The Tenth Amendment
Four other states of the original 13 listed a statement or proposed amendments in their ratification documents somewhat similar to the present Tenth Amendment:
South Carolina: "This Convention doth also declare, that no section or paragraph of the said Constitution warrants a construction that the states do not retain every power not expressly relinquished by them, and vested in the general government of the Union.
North Carolina proposed amendment: "1. That each state in the Union shall respectively retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States, or to the departments of the federal government."
Massachusetts proposed amendment: "First, That it be explicitly declared that all Powers not expressly delegated by the aforesaid Constitution are reserved to the several States to be by them exercised."
New Hampshire proposed amendment: "I. That it be explicitly declared that all powers not expressly and particularly delegated by the aforesaid Constitution, are reserved to the several States, to be by them exercised."
Thus, a majority of 7 of the 13 original states either expressly said that the people could resume or reassume the powers of governance or that states retained powers not delegated or relinquished by them in the Constitution. Those powers include resuming/reassuming their own governance.
The Tenth Amendment as adopted by the United States includes both the individual states and people having those undelegated or unrelinquished powers:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Respectively means individually.
Here is Madison in Congress in 1789 talking about the proposed Amendments in the Bill of Rights, in particular what ended up as the Tenth Amendment:
I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.
In other words, it's not needed because the Constitution already means that, but it doesn't hurt to add it.
From "Free, Sovereign, and Independent States, The Intended Meaning of the American Constitution" by John Remington Graham (2009). Page 178:
Amendment X added nothing new, but confirmed what the main body of the Constitution was already understood to mean. It was meant, not only as a safeguard against forced construction of the powers of the Union, but also to give solemnity to the constitutional custom allowed in extraordinary circumstances revolutionary but peaceable and lawful alterations in government.
And
Among the powers reserved to the several States was the right of the people of each state in convention to take back the authority delegated to the federal government under the United States Constitution, and thereby to secede from the union.
Here is what Jefferson Davis said on the floor of the US Senate in January 1861:
...the tenth amendment of the Constitution declared that all which had not been delegated was reserved to the States or to the people. Now, I ask where among the delegated grants to the Federal Government do you find any power to coerce a state; where among the provisions of the Constitution do you find any prohibition on the part of a State to withdraw; and if you find neither one nor the other, must not this power be in that great depository, the reserved rights of the States? How was it ever taken out of that source of all power to the Federal Government? It was not delegated to the Federal Government; it was not prohibited to the States; it necessarily remains, then, among the reserved powers of the States.
Anti-Federalists pushed for and got the Bill of Rights passed. Think of the arguments that could be made against freedom of the press, freedom of religion, the right to bear arms, etc., if we didn't have the Bill of Rights. These arguments would be like the "It is not in the Constitution" argument that some make against secession.
In 1788-90 states had peaceably, unilaterally and with the approval of their own state conventions withdrawn from Union under the Articles of Confederation. Where in the Constitution was the right of states to use the power that they had just exercised taken away from them? Under the Constitution, secession wasn’t prohibited to the states, and other states and the federal government were not given the power to stop it. It was therefore a power retained by the states under the Tenth Amendment. They had it and exercised it while under the Articles; it wasn’t taken away by the Constitution; they still had it after the Constitution was ratified. It was a peaceful, legal way out of the Union for a state, should the Union not work out well for them.
Basically, the Constitution is the supreme law of the land. The Tenth Amendment is part of the Constitution. Secession was not outlawed by the rest of the Constitution. Therefore, secession must have been a power retained by the states.
Your argument against secession using citizenship
The core reason is that when any territory or country, as in the case of Texas, joins the Union, by consent of Congress, the people of the new State are no longer citizens of that State, they are citizens of the USA.
Their USA citizenship cannot be taken away by the State due to an act of secession. Citizenship rights can only be limited by being guilty of a felony, that is a power given to States.
Any change in USA citizenship to a foreign country citizenship can only be done by the USA, through Congress.
Remember, States do not have rights, they have powers, only citizens have rights protected directly by the federal government and Constitution.
That is certainly a novel argument. Up until the Civil War, people considered themselves citizens of their state first, and the US second. See the interesting discussion in State Citizen or US Citizen.
Basically, people have rights. On that we agree. Governments are instituted to protect those rights, be they the federal government or state governments. Remember the Declaration of Independence?
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
They were 13 sovereign states at that point in time. From Graham's book again, page 117:
These colonies did not all break away at once, but began to secede from the British Empire one by one. Before the Declaration of Independence on July 4, 1776, five colonies had formally seceded, and the remainder had established provisional governments, each of them autonomous of the others. In practical effect all thirteen were free, sovereign, and independent States.
Notice also that all three of the resume/reassume statements say that the people have the ability to resume/reassume powers of governance. That power is supra-constitutional, a voice of the sovereigns who ratified the Constitution. People of a state are the ultimate sovereign voice of that state. Seceding states in 1860-61 formed secession conventions much like the conventions that ratified the Constitution, and some states additionally put the question of secession directly to their voters (a step further than the ratifications of the Constitution by the original 13 states).
If the people of a state decide for the state to secede, people of the state who disagreed could have retained their US citizenship and gone to the Northern states if they wanted. Legally at that time, slaves were considered property and could not leave the seceded states except by escaping or with the permission of their owners. Some Northern states still had slaves in 1860-1861 and some Northern states had Black Laws severely restricting the rights of blacks. Was the Federal government adequately protecting the rights of those slaves/blacks in Northern States?