Can’t Secede? Declare Judicial Independence. [updated]

More than 42,000 people have signed a petition asking the White House to “Peacefully grant the State of Texas [the right] to withdraw from the United States of America and create its own NEW government.”

You don’t like what Washington is doing? You think we’re on the path to despotism? I agree.

But the issue of states’ rights to secede was settled on the battlefields of the Civil War [update: Justice Scalia agrees], and the resolution was adverse to Texas. Contrary to rumor, Texas did not, when it rejoined the Union, reserve the right to secede.

So assuming that the United States doesn’t allow Texas, with its oil and its barbecue, to take its ball and go home (the President might happily let Texas, with its 34 Republican electoral college votes, go, but it would not be up to him), I propose an alternative or, if you like, an intermediate step between statehood and nationhood:

Give the Texas Constitution some meaning, starting with the Texas Bill of Rights.

America’s founders built a bulwark against despotism; they called it the Bill of Rights. The U.S. Supreme Court’s erosion of the Bill of Rights has brought us steadily closer to tyranny over the last two hundred years. When trying to interpret Texas’s Bill of Rights, Texas’s Court of Criminal Appeals looks to opinions of the U.S. Supreme Court. There is no reason for this.

Texas is bound by the U.S. Supreme Court’s interpretation of the U.S. Constitution, but the only U.S. Supreme Court opinions that are relevant to the interpretation of the Texas Bill of Rights are those that Texas’s founders would have known of when they wrote that portion of the Texas Constitution—mostly in 1836. There were almost no Supreme Court cases on the Bill of Rights before 1836.

So Texas’s high court for criminal cases is free to interpret the Texas Bill of Rights for Texans. This will make us all a little more free, a little less subject to government interference in our personal lives. If that’s not enough of a reason, it will also send the message that Texas really is different, that we are prepared to seize our own destiny, and that we can do just fine with less interference from Washington.

What’s the downside?

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