The Texas Tots May Still Live

To recap, I posted a couple of items recently concerning an article, Let’s Mess With Texas, in which Vasan Kesavan and Michael Stokes Paulsen argued that Texas retains to the present day the right to divide itself into as many as five states. The original March 1, 1845 Joint Resolution by which Congress granted consent to the erection of the State of Texas included a provision by which Congress authorized the later creation of up to four additional states (five in total, including Texas) from the territory of the former Republic of Texas. The authors took the position that that congressional authorization remained in effect, and that Texas remained free to take advantage of it at any time.

In a comment here and in a post at his own Millard Fillmore’s Bathtub, Ed Darrell questioned this conclusion. In particular, Ed suggested that the events surrounding Texas’s secession from and restoration to the Union in the 1860s may have fundamentally changed the basis of Texas’s membership as a state in the Union and explicitly or implicitly superseded the March 1, 1845 Joint Resolution and Congress’s consent to the creation of what I will refer to as the “Texas Tots.”

Ed’s point seemed substantial, and the article did not address it. I therefore decided to take a closer look. Ed helpfully included a link to the major legislative provisions and executive proclamations relating to the secession and restoration of Texas, which I have reviewed. Here are my thoughts.

My provisional view is that the continued viability of the Texas Tots depends on how far one is willing to press the legal fictions that underlay the position that the Union took concerning secession and reunion during the Civil War and Reconstruction. Ironically, another article by the same authors, Is West Virginia Unconstitutional?, provides an excellent framework for constructing an argument that the Texas Tots still live.

Without going into mind-numbing detail, the West Virginia article analyzes the constitutionality of the process by which West Virginia became a state during the Civil War. The article is effectively divided into two parts. The second part of the article discusses Article IV, Section 3; while interesting in its own right, it need not detain us here. For present purposes, it is the first part of the article (the first 42 pages, through page 332) that contains the analysis incorporated below.

Very briefly, the position that Abraham Lincoln took from the beginning of the War and maintained throughout was that the Union was permanent; states could not legally leave the Union, except perhaps via constitutional amendment (or by extra-legal right of revolution). It followed that the purported secession of a state was a legal nullity – in Lincoln’s words, “legally void.”

The “so-called seceded States” had not, as a legal matter, seceded. Rather, disloyal individuals in southern states had joined in combinations too powerful to be suppressed by the ordinary course of judicial proceeds – an illegal “rebellion.”

Under the insurrectionary governments purportedly formed by these rebellious combinations were unlawful and void. Under the Guarantee Clause, the Executive Branch was entitled to refuse to recognize them, and Congress was entitled to refuse to seat their Senators and Congressmen. Sovereignty in those states in rebellion reverted to those citizens who remained loyal. If and when those citizens were able to form a new government, the United States was entitled to recognize it. Indeed, the task and duty of the federal government was to suppress the unlawful combinations that had arisen to the point that loyal citizens could form new governments that the federal government could recognize.

In most cases, the remaining loyal citizens of southern states in rebellion were unable to reassemble loyal governments during the War. West Virginia, however, was the exception that demonstrated the theory. After the purported secession of Virginia, the people of Virginia reassembled themselves in convention in Wheeling, declared state offices vacant, and reconstituted a state government composed of loyal citizens who recognized the authority of the federal government. The federal government, in turn, recognized that government as the legitimate government of Virginia, and Congress seated its senators and representatives. When that government, on behalf of Virginia, consented to the creation of the state of West Virginia out of a portion of the territory of Virginia, the federal government likewise deemed that consent sufficient to satisfy the requirement of Article IV, Section 3 that constitutional requirement of consent of the state out of which the new state was being created.

The various Reconstruction statutes and edicts linked by Ed Darrell likewise appear to be consistent with this analysis. The states had never gone out of existence and continued to exist. In Texas and other states, the laws of the United States had been opposed and their execution obstructed “by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by law. When the “insurrection” had been “suppressed”, President Johnson proclaimed in 1866 that “the insurrection which heretofore existed in the State of Texas is at an end.”

Although Congress disagreed with President Johnson on many issues, Congress too looked to the same basic framework in imposing military reconstruction in 1867. Whether or not the “insurrection” had been “suppressed”, in Congress’s view the people of those states had not yet established loyal governments worthy of recognition by the federal government and capable of adequately protecting life and property:

[N]o legal State governments or adequate protection for life or property now exists in the rebel States . . . and . . . it is necessary that peace and good order should be enforced in said States until loyal and republican State governments can be legally established . . ..

In those acts (passed over President Johnson’s veto) and in subsequent legislation signed by President Grant, Congress specified both the requirements it would insist on – both procedural and substantive – before it would recognize that the resulting state governments were loyal and republican and therefore entitled to representation in Congress.

I do not see anything in these provisions that voided the March 1, 1845 Joint Resolution in general or the Texas Tots provision in particular. The March 1 Resolution provided that Texas would be admitted as a state when its people established “a republican form of government.” In its subsequent Joint Resolution of December 29, 1846, which incorporated the March 1, 1845 Joint Resolution, Congress recognized that the people of Texas had, in proper form, established a constitution and government in the required form, admitted Texas as a state, and declared that it was entitled to representation in the federal legislature.

In 1861, Texas ceased to have a government recognized by the United States as republican. Sovereignty reverted to the people. But this does not mean that the state ceased to exist. To the contrary, the state remained a member of the Union, entitled to have its congressional delegation seated when its people reestablished a loyal, republican government. The only thing that changed was that the requirements for a “republican” government had changed and become more stringent. To this extent, perhaps, the Reconstruction acts may be seen as modifying the requirements of the Joint Resolution – but not voiding or repealing it.

Likewise, the Texas Tots provision stated that the Tots would be "entitled to admission under the provisions of the federal constitution". The requirements "under the provisions of the federal constitution" may have changed between 1845 and 1869, but the principal remained the same. Again, there is no reason to conclude that the Reconstruction acts voided the Texas Tots provision of the Joint Resolution.