In 2006, the late Justice Antonin Scalia responded to a screenwriter’s question about secession by confidently asserting that, “If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede.” For many TEXIT opponents, this brief letter has become a cornerstone argument against Texas independence, as if Scalia’s casual remarks hold the weight of a Supreme Court ruling. But here’s the truth: this letter is far from a legal argument, and treating it as such is laughable. It’s a collection of weak points that crumble under scrutiny, especially when it comes to Texas.
Scalia’s letter makes three particularly absurd claims: first, that Texas v. White settled the secession question; second, that the military defeat of the Confederacy serves as a “legal precedent”; and third, that the Pledge of Allegiance somehow holds constitutional weight. It’s time to dismantle these fallacies and make the case that Texas has every right to reclaim its independence.
Texas v. White: A Shaky Legal Foundation
Let’s start with Scalia’s reliance on Texas v. White, the 1869 Supreme Court case that supposedly rendered secession illegal. This case is a legal house of cards, built on the ludicrous idea that the Preamble of the U.S. Constitution carries forward the “perpetual union” language from the Articles of Confederation. But here’s the problem: the Articles of Confederation were scrapped when the Constitution was adopted. The Constitution isn’t a continuation of the Articles—it’s a complete replacement. The idea that we can cherry-pick concepts from a defunct document and apply them to our current legal framework is nonsense.
Even more absurd is the claim that the federal government can derive any powers from the Preamble. The Preamble is just that—an introduction. It’s not a source of legal authority, a point confirmed by the Supreme Court itself in Jacobson v. Massachusetts (1905). The Preamble can’t be used to uphold the “perpetual union” idea, and yet that’s exactly what Texas v. White tried to do. Scalia’s reliance on this flawed ruling shows just how shaky his argument is. The fact is, Texas v. White is not a roadblock to Texas independence. It’s an outdated case built on bad logic.
The Pledge of Allegiance Isn’t Law—It’s a Loyalty Oath
One of the most outrageous elements of Scalia’s letter is his casual reference to the Pledge of Allegiance, as if it carries legal weight. He writes, “Hence, in the Pledge of Allegiance, ‘one Nation, indivisible’.” Let’s be clear about this: the Pledge of Allegiance is not a law. It’s not part of the Constitution, it’s not part of any legal doctrine, and it certainly doesn’t override the rights of states. It’s a loyalty oath, not a legal document. The idea that Scalia would use the Pledge of Allegiance to support his argument is, quite frankly, insane.
The Pledge wasn’t even written until 1892, decades after the Civil War. It was created to foster national unity, not as a statement of constitutional law. If we’re going to talk about real law, we should be looking at the Texas Constitution, not a pledge written for schoolchildren. Article 1, Section 2 of the Texas Constitution states that “All political power is inherent in the people… they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.” That’s the law. Not some 19th-century loyalty oath. Scalia’s appeal to the Pledge of Allegiance is nothing more than emotional manipulation, an attempt to gloss over the legal realities of Texas’ right to self-determination.
Consent of the Governed: The Real Law We Should Be Talking About
What we should be talking about is the right of Texans to determine their own future, as outlined in both state law and international treaties. Article 1, Section 2 of the Texas Constitution gives Texans the inalienable right to “alter, reform or abolish their government” whenever they see fit. This isn’t just a nice idea—it’s a legal right that Texans hold. And it’s not just recognized in Texas law; it’s backed up by international law. The United States has signed international treaties, including the United Nations Charter and the International Covenant on Civil and Political Rights, both of which uphold the principle of self-determination.
How can the U.S. support the right of self-determination for nations around the world while denying it to Texas? It’s hypocritical. Texas has the legal and moral right to decide its own political future. Scalia’s appeal to a post-war Pledge of Allegiance has no bearing on the real law that governs the rights of Texans.
Military Subjugation Is Not Legal Precedent
The most heinous part of Scalia’s argument is his equation of military subjugation with legal precedent. He implies that because the Confederacy was defeated in the Civil War, the issue of secession is legally resolved. But force does not create law. The federal government’s use of military power to crush the seceding Southern states doesn’t establish a legal precedent—it simply shows that Washington was willing to use violence to maintain control.
What Scalia is really saying is that might makes right. But that’s not how law works. If military force were enough to settle legal questions, then every dictatorship in history could claim legitimacy. Scalia’s argument is nothing more than a justification for federal overreach. It’s an insult to the principles of democracy and self-governance that this country was supposedly founded on.
The Case for Texas Independence
At its core, TEXIT is about the right of Texans to govern themselves. Texas has its own economy, culture, and identity. The federal government, meanwhile, has become increasingly disconnected from the needs and values of Texans. From burdensome taxes to federal regulations that stifle economic growth, Washington has become a roadblock to Texas’ success, not a partner. Texans deserve the right to determine their own future, free from the interference of a federal government that no longer represents them.
This isn’t just a question of practicality—it’s a question of principle. Texas has the right to self-determination. It’s enshrined in the Texas Constitution, supported by international law, and rooted in the very foundation of American democracy. The idea that Texas cannot secede is a myth. It’s a lie perpetuated by those who fear losing Texas’ economic and political influence. But the truth is, Texas has every right to become an independent nation once again.
Scalia’s Letter Is Just That—A Letter
Justice Scalia’s 2006 letter is not a legal argument. It’s not a Supreme Court ruling. It’s just a letter, and treating it as anything more than that is absurd. Scalia’s reliance on Texas v. White and the Pledge of Allegiance shows just how weak his argument is. Neither the Constitution nor the federal courts have definitively barred secession, and Scalia’s off-hand remarks certainly don’t settle the issue.
The real law that matters is right here in Texas. Article 1, Section 2 of the Texas Constitution and the principles of self-determination enshrined in international law both affirm that Texans have the right to decide their own future. Scalia’s letter? It’s just another example of Washington’s dismissive attitude toward Texas’ legitimate aspirations. The future of Texas will be decided by Texans, not by a casual letter from a Supreme Court justice.
TEXIT is about reclaiming that right—our right to self-governance and independence. The debate is far from over. In fact, it’s just getting started.