Secession has long tantalized Texans. Twice we’ve been moved to pursue it—first in 1836, when we fought to win independence from Mexico, then again in 1861, when Texas joined the other states of the Confederacy in leaving the United States. The latter move’s failure seemed to settle the question of whether Texas (or any other state) held the right to secede from the union. The U.S. Supreme Court case that made secession illegal—Texas v. White, from 1869—also rejected the notion that, because Texas was once an independent republic, it enjoys special privileges when it comes to secession. Still, the matter has never been put to bed entirely, and has been attracting fresh attention amid the Lone Star State’s latest clash with the federal government at the U.S.-Mexico border.
State leaders have long had to answer questions about the prospects for secession, and they’ve tended to do so delicately. When then-governor Rick Perry was asked about the subject during the tea party protests of 2009, he didn’t rule it out, saying that “if Washington continues to thumb their nose at the American people, you know, who knows what may come out of that?” More recently, in 2021, Senator Ted Cruz outlined the circumstances that would make him reconsider his anti-secessionist position: Democrats ending the Senate filibuster, pursuing D.C. statehood, adding seats to the U.S. Supreme Court, pushing for federal control over elections, or “fundamentally destroying the country,” whatever that may mean. An independent Texas is fun for a certain type of politician to daydream about—or pay lip service to—but not something they’ve moved to pursue.
In recent weeks, though, secession has gone from a “nod to it and ignore it” issue to one with a bit more urgency. First, in late December, state GOP chair Matt Rinaldi rejected a petition from the pro-secession Texas Nationalist Movement that sought to place the question of secession on the party’s March primary ballot, in a nonbinding form. The signatures gathered by the group, Rinaldi claimed, were invalid because many had been collected electronically. The organization filed suit to challenge Rinaldi’s authority to reject the proposal, but the state Supreme Court declined to hear the case, leaving Texas Republicans without an avenue to demonstrate their support for or rejection of secession in March.
In January, though, secession came back into the headlines—this time, at the instigation of the governor. After the United States Supreme Court issued a 5–4 ruling overturning a lower court injunction that prevented federal agents from removing razor wire the state had placed along the border, Governor Greg Abbott pushed back, rejecting the court’s authority and declaring that “the federal government has broken the compact between the United States and the states.”
That language is familiar to historians of the Civil War and to legal scholars. The “compact theory” of the U.S. Constitution was used to justify the Confederate secessions of 1861, and was rejected all the way back in Texas v. White. Abbott, a former state Supreme Court justice and attorney general, is certainly aware of the history of the term and the century and a half of court rulings that reject the theory behind it. His choice to invoke it raises a question that the party, just a month earlier, chose to keep off of its primary ballot: How seriously should Texans be taking the idea of secession?
Over the past decade and a half—roughly since the inauguration of Barack Obama as president, when the Texas Nationalist Movement inspired Perry to nod at scenarios in which the state might leave the union—the question has generally failed to elicit much more than sighs and eye rolls from legal scholars, political scientists, and historians. It was easy enough to mock Perry, to point out the small following of the independence “movement,” and to dismiss the idea as a fantasy. Those responses may still be reasonable (it’s never a bad time to dunk on Rick Perry), but it’s worth considering that Roe v. Wade, the U.S. Supreme Court ruling on abortion rights, was regarded for half a century as settled law, until suddenly it wasn’t. Texas v. White may have been decided a century before Roe, but if the Supreme Court is in a mood to toss out long-established precedents, there’s no limit on how far back it can reach.
I asked Jeremi Suri, the Mack Brown Distinguished Chair for Leadership in Global Affairs at the University of Texas and the author of Civil War by Other Means: America’s Long and Unfinished Fight for Democracy, if the transgressive tendencies of today’s Supreme Court means that we ought to take secession more seriously, and he was initially dismissive. “No,” he said, flatly. “It’s inconceivable to me that John Roberts, Brett Kavanaugh, [Neil] Gorsuch, or Amy Coney Barrett would side with any state seceding. It’s hard to imagine Alito or Thomas doing that, but who knows what they’re thinking. But you’ve got seven firm votes that a state could not secede.”
As our conversation continued, he started to talk about scenarios where, in lieu of outright secession, we might see the question of dissolution emerge in another form. “Right now, it’s people trying to win points with far-right ideologues and sound tough, and express their anger,” Suri said—but he could imagine a situation in which, say, Texans voted on secession not as a threat, and not with the intention of starting a shooting war with the feds, but as a negotiating tactic to push for a system with a weaker federal government and more rights granted to the states.
“The argument would go, ‘Look, there are a lot of Texans who love the United States, but are unhappy with the relationship between the state and the [current] federal government, and this is a movement to renegotiate that relationship,’ ” Suri explained. From there, rather than making a beeline directly toward an independent Republic of Texas, you might end up at a convention of states that could win support from both the left and the right—one, say, where California has the right to ban semiautomatic weapons and Texas has more control over its southern border. “You’d address the way that the states and the federal government interact, and how that reflects a series of decisions that were made over time, and that might not best serve the needs of the states and the federal government today—that’s how you could get to the question of whether everyone might be better off as part of a . . . [more] federalist system.”
In that scenario, Texas might not land on full independence, a separate nation from the U.S., but a question like “who controls the border?” could end up with a different answer than the one the Supreme Court provided in January. Should there be a convention of the states, any part of the Constitution could be rewritten, granting new powers to states or dramatically changing existing processes.
Article V of the U.S. Constitution gives the states the ability to call such a convention, and it doesn’t place many restrictions on the process (the entire article is a mere 143 words long). It requires two thirds of state legislatures to call for such a convention, and then for amendments proposed at the convention to be approved by three fourths of the states. There are no other rules outlined for the process in the Constitution. To date, this power has never been invoked.
While it’s possible to imagine such a convention being called (19 of the required 34 states have already voted for one) the sort of consensus-building it would take to actually approve amendments by a three-quarters majority is hard to imagine in today’s deeply polarized America. Only 13 states could block movement on any given issue, meaning you’d need many of the bluest of blue states and the reddest of the red to agree on issues before anything could be ratified. But such an approach would avoid reopening Texas v. White, making it a more plausible path than most. And, as Suri noted, there are measures that could reassess certain relationships between states and the federal government that stop short of rewriting the Constitution.
“It doesn’t have to be a full-blown constitutional convention,” he said. “There could be efforts to bring leaders together, even informally, from various states and the federal government, to work out new ways of thinking about things. Congress could legislate change.”
Francis H. Buckley, a professor at George Mason University’s Antonin Scalia Law School, has spent a lot of time thinking about what a successful secession movement in the United States might look like. A Canadian who studied in Quebec, which has long had its own secession movement, Buckley is more bullish on the prospect than most. In his 2020 book American Secession, he explored in detail the idea of a “national divorce.” While he shared Suri’s skepticism that a three-quarters majority of states would agree on significant changes to the Constitution, he could imagine Texas benefitting from the process.
“You could see how people on both sides of the political fence might agree to some changes; like, if Texas were to secede, the Democratic Party might say to itself, ‘You know, a national election short of the Texas electoral votes [40 out of the 270 required to win the presidency] might not be such a bad thing,’ ” Buckley pointed out. In that scenario, maybe the rest of the Constitution remains as written, but the fabled escape clause that Texans have long believed existed would be added to the document.
Buckley sees secession less as a Texas issue and more as a national one. He believes that, given our divisions, whichever party wins the presidency in 2024, states firmly controlled by the losing party will make some movement toward secession. “If Trump is elected, I expect to see some movement toward secession in the states in the Pacific Northwest and California,” he told me. In 2017, shortly after Trump’s inauguration, polling in California found that a third of the state supported the move, up from just 20 percent three years earlier. That’s significantly higher than the percentage of Texans who supported secession at the start of the Obama administration. Buckley’s time following the Quebec secession movement informs his understanding of the U.S. movement. Quebec is still part of Canada, but its narrowly failed 1995 secession vote—which revealed the province to be nearly equally split—resulted in new negotiations with the Canadian government and, ultimately, the province winning new control of immigration, distinct from the rules in the rest of the country. “You aren’t talking war—we aren’t living in the nineteenth century,” Buckley said. “We’re talking about a very lengthy course of negotiation with all of the states, where the passions can go down considerably, so what you’re really talking about is a kind of renewed federalism, which may not be such a bad thing.”
Still, there’s a reason the Texas Nationalist Movement doesn’t call itself the Texas Renewed Federalism Movement. What Buckley describes does seem like a peaceful way to reassess the relationship between the states. But part of the popular appeal of secession lies in its boldness. When Texas Nationalist Movement head Daniel Miller told crowds in 2015 that “there is no solution for Texas other than independence,” that statement necessarily precluded a slow renegotiation of federalism. Are the folks who fantasize about an independent Texas willing to let that dream go in favor of something as tedious as ongoing negotiations among states over which of their powers should be enhanced relative to those of the federal government?
“That’s why secession essentially died in Quebec after twenty-five years of intense constitutional deliberation all over the country,” Buckley acknowledged. “People finally decided they were just sick and tired of the whole damn thing. Even the government of Quebec, which was very nationalistic, has given up on it because it’s just too damn boring.” If something is too boring for Canadians, it’s hard to imagine fired-up Texans being satisfied by the process.
This is one dilemma of secession: the parts that make it emotionally attractive are more or less unworkable in practice, and the strengthening of states’ rights, while conceivable in practice, would require collaboration, compromise, and consensus with precisely the same folks that secession advocates want to get away from.
The other dilemma involves the exorbitant costs that leaving the union would impose on Texas and its taxpayers—a topic that secession proponents don’t like to discuss. (Miller, in a 2009 interview with Texas Monthly, dismissed similar points by saying “you can ‘What if’ this thing to death” without noting that, should his movement achieve its aim, those questions would, in fact, “what if” his plan until its leaders had satisfactory answers, or until it died.) After secession, Texas would need to either create expensive systems to replace Social Security and Medicare, or to tell newly minted citizens of the Republic of Texas that those programs no longer exist. It would need to provide for national defense. It would have to pay the U.S. government for military bases, national parks, and federal prisons. It would have to assume its fair share of the $34 trillion national debt. It would have to pay interest on that debt. It would, as Suri noted, lose the federal research and financial aid dollars that keep Texas’s universities educating students, and the federal funding that keeps its hospitals functioning. TxDOT would have to maintain highways without federal aid. “There’s a big difference between 1861, when the federal government was small, and you could live in Texas and have no connection to it,” he pointed out. “There was no Social Security, no real federal military presence in Texas. The federal government was pretty much nowhere, so you could conceive of living without it.”
Could the Republic of Texas make up the difference by establishing a national income tax? Hardly—the state currently receives more from the federal government than it pays in taxes. In 2021, the last year for which data is available, Texas sent the federal government an average of $10,443 per Texan in taxes, while receiving $11,981 per Texan—for a net annual inflow to Texas of approximately $45 billion.
Ultimately, no one knows how popular the idea of an independent Texas truly is—though if limited polling data is any indication, it may be gaining traction. The question has been polled four times since 2009; in three of those polls, taken between 2009 and 2016, it received between 15 and 26 percent support, meaning it would—at best—be rejected by a nearly three-to-one margin. A 2022 poll by a different pollster, meanwhile, found that Texans favored secession by a 60/40 split, which, if true, would indicate a 53-point swing from 2016.
Sanford Levinson, a professor of government at the University of Texas School of Law, said he would have liked to see the concept’s popularity put to a vote. He recalled the surprise, and national headlines, in 2017 when high schoolers at Texas Boys State passed a secession bill in their mock legislature. “Nobody knew what to do with that. Was it simply ‘boys will be boys’ or was it a portrait of the future? So I’m sorry that it won’t be on the ballot—as an academic, I’d be very interested in simply knowing what the numbers would be.”
And Levinson understands the renewed consideration, given the divided state of the nation, where a lost election triggers accusations of fraud and even an insurrection. “I don’t think you have to be crazy to say the U.S. is just too large to be governed effectively,” he said. The point of a constitution isn’t to guarantee that everyone gets what they want, after all—it’s to ensure that people who disagree, even vehemently, can tolerate sharing power with one another. If that’s changed, then maybe the question of secession is less “should Texas be its own country again” and more “can the U.S. survive as it is?”