Can Texas split itself into five states? Is West Virginia legal?

Elektratig has found a legal scholar with a wild bent who has penned a couple of scholarly articles designed to give heart to conspiracy nuts, anarchists and radical libertarians.

One article [by Michael Stokes Paulsen], “Let’s Mess With Texas,” actually was published in the Texas Law Review in 2004, arguing the case that the odd treaty negotiations/statehood legislation that led to Texas becoming part of the U.S. in 1845 included a clause that would allow Texas to split itself into as many as five states.  The authors speculate as to chaos this would cause in U.S. politics.  The article is available in a free download from SSRN.

The other, “Is West Virginia Unconstitutional” was published in the California Law Review. It offers a good history of the creation of West Virginia from the northwestern territory of Virginia in 1863, when the pro-Union counties of the northwest part of the state declared a government in exile and consented to the Union’s partition of Virginia.

Both stories pose interesting questions for government classes, U.S. history classes (especially with regard to the Civil War), and possibly for Texas history classes, though the discussions may not seem germane to the 7th grade minds it would need to entertain.

Both articles breezily discuss history in a wry, humorous way.  A lot more history for high school students should be written this way.

I can’t find it at the moment, but it seems to me that most authorities determined Texas’s right to self-partition expired when the state tried to secede in 1861, and, in any case, did not survive the readmission process subsequent to the end of the war and reconstruction. Although Texas U.S. Rep. John Nance Garner (future vice president under FDR) threatened to exercise the clause in 1930 to fight a tariff he didn’t like, it’s unlikely Texans would consent to lose their bragging rights to being bigger than anybody else in the Lower 48.  The issue is generally considered dead to Texans, if not in law.

Plus, there isn’t enough hair in the Lone Star State for four more Rick Perrys.

If you think history can’t be fun, you haven’t read this stuff.  Go check it out.

Resources:

• Another breezy telling of the story is in A. C. Greene’s 1998 book, Sketches from the Five States of Texas; fans and experts in Texas history will recognize Greene’s name
• David P. Currie in 2005, The Constitution in Congress:  Descent into the maelstrom, 1829-1865
• This issue may be wound up in the old claim that Texas’s admission documents included a clause that would have allowed Texas to secede, a right granted no other state.  There is scant evidence to support that claim.
• See also Sarah Elizabeth Lewis’s article, “Digest of Congressional Action on the Annexation of Texas, December 1844 to march 1845,” in Southwestern Historical Quarterly, Vol. 50 (July 1946)