Home » Texas’ Border Stunt Is Based on the Same Legal Theory Confederate States Used to Secede

Texas’ Border Stunt Is Based on the Same Legal Theory Confederate States Used to Secede

A clash between Texas and the Biden administration over who controls the Texas-Mexico border continues to escalate this week as federal officials once again demanded the state give Border Patrol agents access to a park that is a popular corridor for migrants to enter the United States illegally.

This comes in response to a recent Supreme Court decision, where the court allowed federal officials to dismantle a wire barrier along the border, prompting a legal battle initiated by Texas. Texas argued that this action, aimed at aiding migrants, infringes on state sovereignty and damages Texas security measures.

In response to this decision, Texas Gov. Greg Abbott released a letter arguing that Texas has a right to control the border and that it supersedes federal government control. Abbott’s accusation that the federal government has breached the Constitution by having “broken the compact between the United States and the States” is almost identical to South Carolina’s 1860 declaration of secession.

Furthermore, Abbott’s letter espouses the fringe theory of constitutional law known as “compact theory,” popularized by Confederate states during the Civil War era and supported by Confederate President Jefferson Davis.

This theory posits that the United States was formed through a compact agreed upon by the states, with the federal government being a creation of the states. However, this view conflicts with the widely accepted social contract theory, which asserts that the federal government derives its authority from the consent of the people, not the states. The Supreme Court has consistently rejected compact theory, deeming it illegitimate and incompatible with constitutional law.

At the crux of what’s happening at the southern border lies the question: Does the federal government have the authority to regulate access to Texas’ borders? The answer is unequivocally, yes.

Texas’ embrace of compact theory and its assertion that state government can supersede federal authority directly contradict the landmark Supreme Court case of McCulloch v. Maryland (1819).

Shortly after the ratification of the Constitution in 1788, a national contentious debate arose regarding the necessity of a national bank. Years later, in 1819, Maryland alleged that James McCulloch (the cashier of the United States’ first federal bank) failed to pay a state tax assessed against the bank. Maryland argued that the federal government lacked the authority to establish a bank because it was not explicitly mentioned in Article 1, Section 8, also known as the Necessary and Proper Clause of the Constitution.

This clause lists the power granted to the federal government of the United States by the Constitution; it lists things like providing and maintaining a Navy, laying and collecting taxes, and establishing post offices and roads. Maryland tried to argue that nothing was listed explicitly that said the United States had the power to create a federal bank, and the government only had the power to do what was “necessary.”

In response, Chief Justice John Marshall delivered a seminal opinion, invoking the Necessary and Proper Clause to affirm Congress’ authority to pursue objectives within the scope of the Constitution. Marshall’s interpretation rejected Maryland’s narrow view of the clause.

Instead, Marshall stated that the clause allowed Congress to seek an objective while it exercised its listed powers in the Constitution, as long as the Constitution did not forbid that objective. Marshall stated, “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.”

What does that have to do with what’s happening in Texas?

Since McCulloch and subsequent Supreme Court rulings, it has been established that state laws cannot supersede federal authority. Additionally, while control of immigration and the border is not explicitly enumerated in Article 1, Section 8, it is considered a national government power beyond the reach of state interference.

Gov. Abbott’s invocation of Confederate ideology and defiance of Supreme Court precedent threatens to undermine established constitutional principles and federal powers. By contesting the Supreme Court’s ruling and seeking to undo the McCulloch decision, Texas risks unraveling decades of legal precedent and challenging the fundamental structure of the United States government.

Texas’ border stance challenges the federal government’s authority and goes against historical precedent. It is essential to ensure that the Constitution’s principles are upheld and that the rule of law is respected as the situation unfolds. When states refuse to accept Supreme Court rulings they disagree with, it undermines and weakens the rule of law.


January 2024