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.


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

  1. JamesK says:

    Of course the wannabe secessionists have never quite answered if they did secede what’s to stop the federal government from sending in the US military, rounding up the secessionists, putting them on trial and executing them as traitors.


  2. […] The second idea also died with Texas’s readmission.  The original enabling act (not treaty) said Texas could be divided, but under the Constitution’s powers delegated to Congress on statehood, the admission of Texas probably vitiated that clause.  In any case, the readmission legislation left it out.  Texas will remain the Lone Star State, and not become a Five Star Federation. (We dealt with this issue in an earlier post you probably should click over to see.) […]


  3. Nick Kelsier says:

    In light of Rick Perry, I’d be just as fine giving Texas back to Mexico.


  4. Ed Darrell says:

    My students suggested Chihuahua del Norte. I rather like Baja Oklahoma, myself. We could also get a West Louisiana, and just to really foul up geography classes, East New Mexico. A friend in Denver suggested “Colorado’s Class A Farm Club.”

    We only need to worry if Rick Perry’s office opens a contest to pick the names.


  5. jd2718 says:

    It’ll never happen, but I’d love to name them. And I’m casting my first vote, for the green one, for Southlahoma.


  6. Ed Darrell says:

    There is a .gif map of Texas divided into five that, so far as I can tell, pretty closely parallels John Nance Garner’s proposal:


  7. Nick Kelsier says:

    Yes…lets give the state that elected George Bush governor and ergo gave us him as President an even greater say in the US Congress.

    I’d like to get off this merry-go-round now thank you.


  8. Edward Sisson says:

    I checked the link to the “readmission” documents and what we find is that the departure of Texas from the union is declared null and void, and the “readmission” is merely readmitting representatives of the State of Texas to take seats in the House and Senate. Thus it appears that the original act admitting the state — and approving the creation of up to four more states out of Texas — is still the operative act. Thus the congressional approval of Texas to form new states out of itself appears still to be valid, thereby meeting the constitutional requirement that congress consent to the creation of new states out of existing ones.


  9. Ed Darrell says:

    A map of any of the proposed splittings? Hey, that would be cool.

    I don’t think I’ve ever seen one. There are some maps of Greater Texas, including the long, snaking panhandle up through what is now Colorado into Wyoming, but I don’t believe I’ve ever seen any map proposing a split.

    One of the most authoritative places to look would be the Perry Castaneda Map Collection at the University of Texas. Here’s a link to the Texas historical maps:


  10. jd2718 says:

    Any idea where to find a map of that?



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