Opponents of Texas independence frequently cite Justice Antonin Scalia’s 2006 letter claiming “If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede.” This statement has become gospel for those who want to keep Texas trapped in an abusive federal relationship. But wars don’t decide constitutional questions—courts do.
The fear behind this objection runs deep: If the Civil War “settled” secession, then any attempt at Texas independence would face immediate federal force. This conditioning keeps many Texans believing they have no choice but to accept whatever Washington demands. Scalia’s letter was written to a screenwriter working on a political farce, not as a formal legal opinion.
The Reality: Legal Questions Require Legal Answers
TNM President Daniel Miller puts it plainly: “Wars don’t solve legal questions. Using the Civil War as ‘legal’ precedent is a might-makes-right philosophy with no basis in constitutional law.” The Constitution contains no prohibition against secession. Article I, Section 10 lists powers denied to states—secession isn’t among them.
The Tenth Amendment reserves all unspecified powers to the states and the people. Since the Constitution doesn’t grant the federal government power to prevent state withdrawal, that authority remains with the states themselves.
The Supreme Court’s Own Contradictions
Even the Civil War-era case Texas v. White (1869) that opponents cite contains fatal contradictions. Chief Justice Chase claimed the Union was “indissoluble,” yet admitted there were legal ways for states to leave—either by revolution or “consent of the states.” More damaging to the anti-secession argument, Jacobson v. Massachusetts (1905) later established that the federal government cannot derive powers from the Constitution’s preamble unless explicitly granted elsewhere in the document.
This undermines Texas v. White’s foundation, which relied heavily on preamble language and references to the defunct Articles of Confederation. Chase himself privately wrote to colleagues that they shouldn’t try Jefferson Davis for treason because “by the Constitution, secession is not rebellion.”
International Law Supports Self-Determination
Modern international law recognizes the principle of self-determination. The UN Charter Article 1 supports peoples’ right to determine their political status. The International Court of Justice ruled in 2010 that unilateral declarations of independence don’t violate international law.
Peaceful Precedents Worldwide
The Velvet Divorce between Slovakia and the Czech Republic in 1993 proved that political unions can dissolve peacefully through negotiation. Brexit showed how Article 50 of the Lisbon Treaty provided a legal mechanism for the UK’s departure from the European Union.
Even the Soviet constitution explicitly allowed republics to secede. When the USSR collapsed, new states gained international recognition through political agreement, not military verdicts.
The Texas Mechanism
Texas would pursue independence through the Texas Constitution Article I, Section 2, which states that “all political power is inherent in the people” and they have “at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.”
The process would begin with the Texas Legislature calling for a referendum on independence, following the same democratic principles used in Brexit and other peaceful separations. The Vienna Convention on Succession of States provides the legal framework for transitioning treaties and international obligations.
Scalia’s Practical Concerns
Scalia raised practical questions about who would be parties to a secession lawsuit, noting that “the United States cannot be sued without its consent.” This actually supports the Texas position—independence isn’t a matter for federal courts to decide. It’s a political question resolved through democratic processes and international recognition.
The Justice correctly identified that such cases wouldn’t reach the Supreme Court, but not because secession is illegal. Rather, it’s because independence movements succeed through political action, not litigation. International law scholars recognize that successful independence movements create facts on the ground that courts later acknowledge.
The Bottom Line
Justice Scalia’s 2006 letter reflects the federal establishment’s desire to keep states dependent, not sound constitutional analysis. The Civil War was a political and military conflict, not a legal proceeding that could somehow amend the Constitution through force of arms.
Texas has the inherent right of self-determination. The Constitution doesn’t prohibit secession, international law supports it, and peaceful precedents exist worldwide. The only thing preventing Texas independence is the conditioning that makes Texans believe they’re powerless to govern themselves.
That conditioning ends when Texans realize the truth: We are a nation capable of self-government, and no Supreme Court justice’s letter to a screenwriter can change that fundamental right.
