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(TNM) – Those opposed to states leaving the Union think it is illegal – they shouldn’t be too sure. Dr. Matt Qvortrup breaks down Texas v White and the arguments against national divorce.
The recent British Supreme Court judgment on the Scottish independence referendum has people questioning what would happen if American states tried to leave the Union. It was a unanimous decision that the Scottish parliament has no right to host an independent referendum. Would their decision mirror what would happen in America if states like Texas, want to depart from the union?
I was catching up with an old friend from Alabama, who made a comment that in the United States, secession matters would not even make it before the courts. He continued to cite Texas v White, which most believe makes leaving the Union impossible. His thought process, although common, is not entirely correct.
Nearly 20 years ago, in late 2006, an Alaskan resident named Scott Kohlhass drafted and submitted a ballot initiative calling for Alaska to secede from the United States. Though proper procedure was followed, the state’s lieutenant governor declined to certify it. When Kohlhaas sued, the Supreme Court of Alaska decided such a vote would be illegal. In this case – it is called Kohlhaas v Alaska – the judges relied entirely on Texas v White.
So what did they, like almost everyone else, get wrong about Texas v White?
The matter of Texas v White (1869) is a case where an off-the-cuff remark was blown out of all proportion.
In Anglo-Saxon legal systems, such as that of America and Britain, the law is not just what is decided by the legislature. Rather, judges decide the fine points gradually as they must deal with concrete cases. Most importantly, their decisions create precedents.
This is easy if the judges make pronouncements on the issues which come before them. But sometimes, they make remarks, which are then used in subsequent cases. These ‘by-the-by’ mentions are what lawyers call obiter dicta.
Texas v White was about a technical public finance matter. The government of Texas claimed…
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