Does the Republic of Texas still exist?

In the previous post I stated I would address in further detail the various arguments of Hawaiian separatists.  One persistent claim by Professor Williamson Chang (of the UH William S. Richardson School of Law) is that Hawaii was never “legally” or “lawfully” annexed.  He bases this claim on the assertion that it is “impossible for one sovereign and independent nation [the United States] to acquire the territory of another sovereign and independent nation [via joint-resolution].”   Indeed, Chang claimed in this Civil Beat Article that the late Supreme Court Justice Antonin Scalia “fails the Constitutionality test” because Justice Scalia doesn’t agree with Professor Chang’s interpretation of the document (interpreting this document was his sole duty until the day he died).  Chang states:

“He [Supreme Court Justice Scalia] was wrong on both points.

First, a joint resolution is merely a law, an act of Congress. It has no power to acquire the territory of a foreign, sovereign state. If such a thing were possible, Hawaii itself could have, by an act of its Legislature, acquired the United States.”

Hawaii could, in principle, acquire the United States through an act of the legislature, but like all laws passed by any government on this planet, compliance would mostly be determined by the governments ability to enforce the law.  In the case of the Hawaiian Kingdom, there was basically zero capacity to enforce such a law, which is why we could claim to annex California all we want — but could never enforce that claim (as an example, the Republic of China claimed all of mainland China for decades, but never had the ability to enforce that claim as that regime was overthrown and kicked out).   The United States government on the other hand, does indeed have the ability to enforce it’s territorial claim over Hawaii, which is exactly why Hawaii was annexed via joint resolution.

This is a recurring debate that I’ve been having with many Hawaiian separatists about the difference between legal theories and political realities.  Being a skeptic and promoter of science, I naturally gravitate toward empiricism, facts, and evidence over wild theories that have no basis in reality.  The truth of the matter is that if it were “impossible” as Professor Chang suggests, then it couldn’t have happened.  But it did happen.  I guess the United States is capable of doing the impossible!

Moving back to legal theory land, though Article 4 Section 3 of the US Constitution does specifically state how new States are to admitted, it is silent on the question of acquiring new territories.  Williamson Chang interprets this silence of the Constitution to be undeniable proof that his legal theory is correct.  This might make sense if he were a strict constructionist like Scalia, but something tells me that he isn’t.

Instead, he bases his claim on the raucous debate of the time between imperialists and anti-imperialists that erupted onto the Senate floor.  He quotes Senator William V. Allen of Nebraska and others who believed that an act of Congress could not acquire a foreign nation.  But the opinion of some senators who lost the debate does not constitute proof that your interpretation is the correct one.  Did Williamson Chang even bother to address the rebuttals by the pro-annexation senators?  They specifically cited the annexation of the internationally recognized Republic of Texas via joint resolution as a precedent.  I wonder why that wasn’t included in his Civil Beat article?

While a lively debate is great for any nation or society in general, the mere existence of a debate does not somehow imply greater merit to your argument.  The only thing Chang has demonstrated is that some senators at the time shared his view on the annexation of Hawaii, while the majority did not.  Indeed, they were right that this would set a precedent for imperialism and expansion of the powers of Congress and government in general.  But that is no different than the debates before, during, and after the New Deal era (Wickard v. Filburn) or even during the Civil Rights Movement (Heart of Atlanta).  Whether or not annexation via joint resolution is good or bad for the country, the constitution, society, traditions, or southern sensibilities, is totally irrelevant to the question of whether or not it is unconstitutional for Congress to annex another nation via joint resolution.

The truth of the matter is that the Constitution does not specifically prohibit Congress from “acquiring” or “annexing” new territory into the United States via joint-resolution, just like it doesn’t say anything about Obamacare or the PGA tour (both questions decided by the Supreme Court).  Congress simply asserted this power and it went unchallenged by the people, the states, and the other branches.  The rest is history.  Could it have been done differently?  Should it have been done differently?  Sure, but it wasn’t.  It was done in exactly the way that it was done and that seems to be enough for the vast majority of Hawaii’s inhabitants who don’t look to abstract legal theories when deciding which system will best provide for themselves and their families.

To recap:  The United States may in fact annex territory via joint-resolution for 2 reasons:

1)  The Constitution does not specifically say that Congress cannot do this, just like it doesn’t say Congress cannot make marijuana illegal, or provide universal health care, or fight pointless wars in the Middle East.  Congress and the Court have interpreted the Constitution in such a way that Congress can basically do whatever it is not specifically prohibited by the Constitution from doing.

2)  The United States has the physical capacity to enforce their claims over Hawaii being the 50th State.  You do not have the physical capacity to declare Hawaii a sovereign and independent nation.  That’s just the truth, and the bottom line.

By the way, even if we were to assume that Williamson Chang were correct about Hawaii never being “lawfully” annexed by the United States, the Statehood vote makes that point moot anyway.  Texas v. White clearly states that once States join the Union they may never leave, “except through revolution or consent.”

“When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.”
-Chief Justice Salmon Chase, Opinion of the Court, Texas v. White

 Remember, the Constitution does not specifically prohibit States from seceding.  That question was decided by a war, and the victors merely asserted the power (which is not actually in the Constitution) to prevent states from seceding.  If the people of Iraq or Afghanistan voted to become a State of the Union, and Congress agreed, Iraq’s sovereignty and independence could indeed be extinguished and they would join the United States.  It doesn’t matter that the previous Ba’athist regime under Saddam Hussein was “unlawfully” or “illegally” (aggressive war is illegal under the Nuremberg Doctrine) overthrown.  It wouldn’t even matter if Iraq were “illegally” or “unlawfully” annexed via joint-resolution by the United States Congress.  Because once the Iraqi people drafted up a constitution guaranteeing a republican form of government, and the United States accepted this proposal for admission, Iraq would become the 51st state.  Everything that happened prior to that would be completely irrelevant as far as the US Constitution is concerned.

Thus it happened.  However Hawaii’s residents came to vote for statehood (whether legitimate or not), it doesn’t matter because that vote did take place and Hawaii became the 50th state.

SOVEREIGNTY IS A POLITICAL QUESTION, NOT A LEGAL ARGUMENT

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4 thoughts on “Does the Republic of Texas still exist?

  1. FYI Bronson, My ggg-grandfather had a very similar experience. On the 20th day of December 1860, South Carolina’s Ordinance of Secession was unanimously adopted. Here is a part of this story written by his youngest son.

    Living in the country, many miles from town, none of these were available to the younger children of our family; so our father had a school house constructed on the premises. He hired and boarded a teacher, and threw the school open to all of the neighborhood. This gave a good elementary foundation to those who could not afford to go from home for a higher education and fitted those for more advanced work who could afford it.

    Fortunately, our family belonged to the latter class; and our father, himself a graduate of the State University, was a strong believer in higher education. So that, when the Civil War broke out, the eldest brother, a graduate of the U. S. Naval Academy at Annapolis, was an officer in the U. S. Navy; the second brother, a graduate of the University of Virginia, was practicing law; the third, a graduate of the South Carolina Military Academy and of Oglethorpe Medical College, was practicing medicine; the only sister, a graduate of the Murfreesboro Institute, North Carolina, was living at home; the next two brothers were cadets at the State Military Academy at Charleston South Carolina. I was a student at the preparatory school of Furman University, in Greenville, South Carolina, and the three younger brothers were attending the private school at home.

    This was the situation in our family when that awful storm of political strife and hatred broke over our devoted country and changed the whole course of American history. As is well known, the question of the extension of slavery, and the question of state rights, including the right of secession, had been the bone of increasingly bitter contention between North and South for a number of years, and both sections had thrown down the gauntlet in the presidential nominations of 1860. The election of Abraham Lincoln was therefore the challengs to the South to submit to the northern view on these questions or to carry into effect the extreme view of secession from the Union.

    While the Southern people were not united in believing in the wisdom of secession, they were practically unanimous in their belief in the right of secession. They had been reared in the doctrine of state rights, which contended that since the Union had been voluntarily entered into by each individual and independent state under terms of a written compact, known as the Constitution, each state retained its individual right to withdraw from the Union when it believed that the terms of the contract of union had been violated. The same attitude had been taken by some of the New England states much earlier in the history of the country, but the inevitable effect was to divide section against section, to the serious injury of each and to the vital detriment of the country as a whole.

    But the people of South Carolina were practically a unit in believing that the time had come when they should assert what they regarded as their constitutional right to set up a government of their own.

    Whatever may be thought of the wisdom of such a course, no one can rightfully question its sincerity and its courage. Not knowing whether any other state would follow her example, it was no small matter for this little state to set up an independent republic in the face of an overwhelming opposition on the part of the country as a whole. No group of people, reared with such high ideals of manhood and patriotism as had characterized Carolinians from the beginning of their history could take so perilous a step unless they were actuated by the same high and noble motives that induced the original thirteen colonies, to which they belonged, to declare their independence from Great Britain.

    So a convention of the people was called to consider this momentous question, and it met in the city of Columbia, the capital of the state. My father was appointed head of the delegation that represented our county of Williamsburg. While in session at Columbia an epidemic of smallpox broke out in the city, and the convention fearing that its deliberations might be interrupted, adjourned to the city of Charleston. There, on the 20th day of December, 1860, the Ordinance of Secession was unanimously adopted. The original of this historic document is among the relics of the Civil War placed in the South Carolina room of the building in Richmond, Virginia, that Jefferson Davis occupied while he was president of the Confederacy. The building is public property, and is dedicated exclusively to the preservation of mementos of that tragic period of our history.

    Within a few months several other southern states passed similar ordinances, and amidst intense excitement preparations were begun for what seemed inevitable war. In the harbor of Charleston stood several fortresses occupied by U. S. troops: among these were Fort Sumter, Fort Moultrie, of revolutionary fame, and Fort Johnson. Consistent with her declaration of independence the state relinquished all rights of interest in fortresses outside of her territory, but claimed exclusive ownership and authority over all fortresses within her borders, such being necessary for her protection. Notice to this effect was given to the government at Washington which denied, its validity, and which gave orders to Major Anderson, then in command of all the forces in Charleston Harbor, to concentrate his troops in Fort Sumter and prepare for its defense.

    General P. G. T. Beauregard was put in command of all the Carolina troops, who were hastily gathered from all parts of the state in volunteer regiments. The abandoned forts of the harbor were occupied by some of these volunteers, and preparations continued for the impending struggle. A naval craft the “Floating Battery” consisted at one end of a large platform with an iron screen, and port holes through which the muzzles of the cannons projected, and at the rear proper machinery for propelling and guiding the craft. The purpose of this strange kind of battleship was to fight from various angles on the water’s surface, while other armed points remained stationary, and to board Fort Sumter in case of surrender.

    My eldest brother, Gaillard, who had resigned from the U. S. Navy when the state seceded, was placed in command of the floating battery which, for the time being, constituted the entire navy for the new government. Major Anderson called upon the War Department at Washington for reinforcements of men, ammunition, and supplies for Fort Sumter, and General Beauregard made preparations to prevent their delivery. As a part of this preparation a battalion of cadets from the State Military Academy in Charleston, among whom was my brother Anthony, were stationed at Fort Wagner, on Morris Island nearest the entrance to the harbor, and therefore the first point of contact with any approaching relief ship. They had not long to wait before the Star of the West, bearing the desired, reinforcements made her appearance at the entrance. The cadets promptly turned loose their battery of cannon on her, and she wheeled about and took to sea.

    This was the first shot of the Civil War. General Beauregard then gave notice to Major Anderson that unless he capitulated by a certain hour on the 12th of April a bombardment of Fort Sumter would be opened. The gallant major declined the offer, and at the appointed hour the Stars and Stripes were floating as proudly as ever over the fort. At the same hour the booming of cannons from the surrounding fortresses ushered in one of the most tragic fratricidal struggles that has ever marked the history of nations; a struggle, thank God, from which has emerged a nation more thoroughly united than ever, and destined to play the most important role in the development of the civilization of the world.

    1. It is said that he was the first naval officer of the United States to resign for this cause. Upon reaching Charleston he offered his services to Gen. G. P. T. Beauregard, then in command of the State forces, and who was making preparation for the defense of the city.

      The Legislature of the State had passed a law providing for the “Coast and Harbor Police” at Charleston, and on January 23rd, 1861, Dozier was appointed a Lieutenant in this force and assigned to the command of the ship “Lady Davis,” which played an important part in policing the harbor and adjacent waters to prevent the re-enforcement of Fort Sumter.

      This dangerous and strenuous work continued day and night until April 11th, when he was ordered to place his ship in command of his first officer, and himself to take charge of two large rafts, prepared for the purpose, and have them towed to within the nearest possible point to Fort Sumter, opposite its S. W. corner.

      After dark he was to set these on fire and keep them burning all night in order to illuminate the waters about the Fort, so that the Confederate batteries could see to fire upon any vessels attempting to re-enforce the Fort that night, for General Beauregard had made a demand upon Major Anderson for the surrender of the Fort before daylight of April 12th, at which hour he would open fire in the event of a failure to comply.

      The perilous nature of this undertaking was recognized in the order, which contained these words, “This service is of great importance, and is left to your good discretion.”

      Needless to say that the duty was faithfully performed.

      In the bombardment of the Fort, Lieut. Dozier took part on what is known as the Floating Battery, a kind of iron clad raft, designed for the occasion by Lieut. J. R. Hamilton. During the last year of the struggle, the waning strength of the south and the ever increasing strength of the North made it necessary to concentrate all available forces to resist the advances of the armies under Grant and Sherman.

      Many of those engaged in the seafaring enterprises of the war were transferred to the land forces and placed under the command of the generals of the army.

      Among others, Capt. Dozier, (who had been promoted in rank) was transferred to the army of General Robert E. Lee in Virginia, and participated with that heroic body of veterans in the engagements about Richmond which immediately preceded the fall of the Confederacy.

      When the climax was reached at Appomatox the generosity of General Grant permitted the Southern soldiers to keep their horses and he enjoined them to get home by the shortest route and to use their animals in cultivating the soil.

      Accompanied by his younger brother, Lieut. Leonard Franklin Dozier, a medical officer of the Confederate Army, he started on horseback for their distant home in South Carolina, Leonard mounted on “Lady Bird,” and Gaillard on “Old Gun.”

      These two faithful old war horses, after many days of wearisome journeying, brought them safely home to parents and wives and children, all of whom, together with a good many others, had lived under the same hospitable parental roof during the anxious and weary years of the war, longing for the dawn of peace and the return of the loved ones from the fields of battle.

      1. Never knew you were from South Carolina ^_^

        I’ve been to every location you mentioned. Charleston is a really nice city. Columbia sucks for the most part.

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