I’m going to play Devil’s Advocate here.
“14th Amendment: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States....”
What law would a seceding state be making or enforcing WITHIN THE UNITED STATES — by secession? None. “Making” and “enforcing” are both active actions (i.e., they are acting UPON someone or something). Thus, the active qualifiers of MAKING a law or ENFORCING a law necessarily mean WITHIN THE UNITED STATES. The seceded state is not doing that, because the seceded state is no longer part of the U.S., and therefore is neither making nor enforcing a law within the U.S.
To paraphrase an old 1960s trope, the seceding state is saying to the U.S., “You go your way, and we’ll go ours.”
“Any Texas claim of secession would terminate the privileges and immunities of all citizens of the United States resident in Texas.”
No, it wouldn’t, as U.S. citizens would still have all the privileges and immunities of U.S. citizens while they are within the United States, and would still retain those rights and immunities within the seceded state (which would be its own country or would have allowed itself to be annexed by another), but subject to the laws of the seceded state or the country to which it has become annexed, just as U.S. citizens on foreign soil have always been subject.
“Texas Constitution 1868: Article I, Bill of Rights:
That the heresies of nullification and secession, which brought the country to grief, may be eliminated from future political discussion....”
Don’t you think it would have been more appropriate if you had referenced the Texas Constitution that is in effect today, and has been since 1876 (NOT 1868)? Or, are you attempting to play fast and loose with the facts?
This is what the current Texas Constitution says:
THE TEXAS CONSTITUTION
ARTICLE 1. BILL OF RIGHTS
That the general, great and essential principles of liberty and free government may be recognized and established, we declare:
Sec. 1. FREEDOM AND SOVEREIGNTY OF STATE. Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States.
(Feb. 15, 1876.)
So, you see, the operative clause is “...subject only to the Constitution of the United States.”
That means if the U.S. Constitution does not prohibit secession, neither does the Texas Constitution.
These are interesting and entertaining debates, and I enjoy them, as they make us think (which is always desirable).
In the end, though, it would come down to what SCOTUS says; and even at that the decision of SCOTUS is only “right” until a later SCOTUS determines otherwise.
No one said a constitutional republic was pretty; but it’s the best governing system yet devised.
I’m going to play Devil’s Advocate here.
Fair enough. I'll play advocate.
Don’t you think it would have been more appropriate if you had referenced the Texas Constitution that is in effect today, and has been since 1876 (NOT 1868)? Or, are you attempting to play fast and loose with the facts?
As the 1876 state constitution did not address the issue, and the 1868 state constitution did, it was the most appropriate to quote for the purpose of demonstrating the state's official acknowledgement of heresy. The State clearly stated that Secession and Nullification were constitutional heresies. Maybe Texas lied in its constitution to regain representation in Congress.
What law would a seceding state be making or enforcing WITHIN THE UNITED STATES — by secession? None. “Making” and “enforcing” are both active actions (i.e., they are acting UPON someone or something). Thus, the active qualifiers of MAKING a law or ENFORCING a law necessarily mean WITHIN THE UNITED STATES.
The only entity that can possibly secede from the United States is a state of the United States. The act of seceding would necessarily take place while in the status of being a member state. The act of seceding undoes the prior act of acceding.
The seceded state is not doing that, because the seceded state is no longer part of the U.S., and therefore is neither making nor enforcing a law within the U.S.
The unseceded member state did that because it is the only way to attempt to become seceded.
It is akin to the colonies declaring themselves to be independent. It was the British colonies that declared independence, not the independent states. That is essentially what Texas would have to do. It was not legal proceeding when the colonies did it. It was a rebellion.
Unfortunately for any lawful secession argument, it falls to the directly opposed precedential holding of the U.S. Supreme Court in Texas v. White, 74 U.S. 700 (1869).
The related holding of the Court held that Texas was a state at all relevant times, could not legally separate itself from the union, and did not ever separate itself from the union. It is irrelevant whether you or I agree with the Supreme Court or not. Theirs is the interpretation which prevails as the law of the land until the law is changed, or they issue a superseding interpretation.
At 724, the Court framed the first question it needed to answer:
In all respects, so far as the object could be accomplished by ordinances of the convention, by acts of the legislature, and by votes of the citizens, the relations of Texas to the Union were broken up and new relations to a new government were established for them.The position thus assumed could only be maintained by arms, and Texas accordingly took part, with the other Confederate States, in the war of the rebellion which these events made inevitable. During the whole of that war, there was no governor, or judge, or any other State officer in Texas who recognized the National authority. Nor was any officer of the United States permitted to exercise any authority whatever under the National government within the limits of the State except under the immediate protection of the National military forces.
Did Texas, in consequence of these acts, cease to be a State? Or, if not, did the State cease to be a member of the Union?
- - - - - - - - - -
“Any Texas claim of secession would terminate the privileges and immunities of all citizens of the United States resident in Texas.”No, it wouldn’t, as U.S. citizens would still have all the privileges and immunities of U.S. citizens while they are within the United States, and would still retain those rights and immunities within the seceded state (which would be its own country or would have allowed itself to be annexed by another), but subject to the laws of the seceded state or the country to which it has become annexed, just as U.S. citizens on foreign soil have always been subject.
When the colonies became independent of England, all those who remained in the States became American citizens. What of British loyalists in the former colonies? In the states, the British loyalists became enemy aliens. If they stayed permanently, they became American citizens. If they wanted to retain British subject status, they went to someplace else. They went to Canada where they could take their slaves, if any. They went to Florida. They went to Newfoundland. They went to the Caribbean islands. They went to Great Britain. They went by the tens of thousands, estimated to be about 20% of the population.
If Texas actually seceded, citizens of the Republic of Texas might need a passport to enter the United States. Texas would no longer be in the union. Texas citizens would be considered aliens by the United States. Any commerce between the two would be international commerce.
When Vermont separated from New York in 1777, it waged successful revolution and became a free and independent state, having its own currency and postal system. It did not have a seat in the Continental Congress. It is not mentioned in the Paris Peace Treaty of 1783. In 1791 Vermont was not part of the United States or any union during its period of independence. It was not a territory of the United States. It was not annexed by the United States. Vermont joined the constitutional union as a free and independent state with self-appointed borders, and became the 14th state.
https://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=506
May 14, 1790
The Senate proceeded to the second reading of the bill to prevent bringing goods, wares, and merchandises, from the State of Rhode Island and Providence Plantations into the United States, and to authorize a demand of money from the said State.And, on the question, to assign a time for the third reading of this bill, the yeas and nays being required by one-fifth of the Senators present:
Yeas.—Messrs. Bassett, Carroll, Dalton, Ellsworth, Johnson, Johnston, Izard, King, Langdon, Morris, Read, Schuyler, and Strong.—13.
Nays.—Messrs. Butler, Elmer, Gunn, Henry, Maclay, Walker, and Wingate.—7.
So it was
Ordered, That this bill have the third reading on Monday next.
Monday, May 17.
The Senate proceeded to the third reading of the bill to prevent bringing goods, wares, and merchandises, from the State of Rhode Island and Providence Plantations into the United States, and to authorize a demand of money from the said State, and,
On motion,
Ordered, That this bill be recommitted.
May 29, 1790 - Rhode Island ratified the Constitution under coercion. That was quick. Previously, Rhode Island had refused to send delegates to the Constitutional Convention and had refused to convene a State ratifying convention. It voted against ratification on multiple occasions. George Washington had been inaugurated on April 30, 1789, more than a year before Rhode Island ratified. Note that Rhode Island was not in the constitutional United States at the time of the Senate vote regarding a bill to place a total embargo on goods from Rhode Island entering the United States. Facing economic ruin, Rhode Island suddenly ratified what it had refused to ratify.
Rhode Island did not secede from the self-proclaimed perpetual Confederate union. Rhode Island (as well as North Carolina) was left behind by the eleven states that formed a new constitutional union, with a radically different form of government.
The United States has not treated recalcitrant states with brotherly love. They went to war with the Confederate States, and they threatened Rhode Island with a total embargo. I would expect them to do no less for the great state of Texas.