Original posting: 22 February 2014
They say everything is big in Texas... and what is not big is certainly tall: as in, for instance, tall tales about local characters, both legendary (say, Pecos Bill) and real (Judge Roy Bean: Law West of the Pecos).
One such tall tale- and one often boasted about by Texans- is the notion that, unlike its sister States of the American Union, the State of Texas- on its own initiative (without the consent- or, for that matter, even the input- of the Congress of the United States)- may, at any time, split itself into up to five States!
Where might just such a rather bizarre (if, here, merely constitutionally speaking) concept have even come from?
It appears to have originated in language found within the provisions of the Texas Annexation Resolution of 1 March 1845 (5 Stat. 797), where- within the Third provision in said Resolution's Section 2- it reads as follows:
New States, of convenient size, not exceeding four in number, in addition to said State of Texas, and having sufficient population, may hereafter, by the consent of said State, be formed out of the territory thereof, which shall be entitled to admission under the provisions of the Federal Constitution...
The reception of the above Congressional Resolution by Texas was proclaimed by President (of the then-still Republic of Texas) Anson Jones on 5 May 1845 at the same time he issued a Writ of Election for delegates to a Constitutional Convention to convene in Austin, the Republic's capital, on the following 4 July. On 23 June 1845, the Texas Annexation Resolution was formally accepted by both houses of the Congress of the Republic of Texas and, come 4 July 1845- the same day the State Constitutional Convention first convened- that Convention itself officially accepted the Resolution (along with the subsequent imprimatur of the Texas Congress) as the legal basis on which said Convention could then act.
The text of the State Constitution drafted by this Convention was finalized on 27 August 1845 and submitted to the People of the Republic of Texas for ratification on 13 October 1845 (the vote in favor of ratification [and, thereby, Statehood for Texas] being 4,174 to 312), after which said Constitution was sent on to Washington DC for the approval of the Congress of the United States. Congress responded with the Texas Admission Act of 29 December 1845 (9 Stat. 108), at the end of which it was specifically stated [t]hat the State of Texas shall be one, and is hereby declared to be one, of the United States of America, and admitted to the Union on an equal footing with the original States in all respects whatever.
The problem (as regards any notion of Texas suddenly adding up to four new stars to the blue canton of Old Glory whenever it might damn well feel like it) is that this very declaration (that Texas has been "declared to be one" of the Nation's constituent States "admitted... on an equal footing" with other States already within the Union) outright moots the provision allowing Texas to, alone, consent to becoming up to five States formed out of its own territory!
Because no other State (whether admitted before, or after, Texas) is constitutionally permitted to do the same thing and, if Texas were permitted to do so, its sister States would then no longer be on an "equal footing" with Texas "in all respects whatever" as was declared- by Act of Congress- immediately upon Texas first becoming a State!
Article IV, Section 3, clause 1 of the Constitution of the United States includes a provision under which
no new State shall be formed or erected within the Jurisdiction of any other State... without the Consent of the Legislatures of the States concerned as well as of the Congress.
Once Texas had been admitted as a State of the American Union "on an equal footing... in all respects whatever" with all other States of that Union (present, as well as future, towards the end of 1845), its own innate ability to split itself into up to five new States of that Union (at least without the consent of Congress) constitutionally- as well as immediately- disappeared.
For- in that same year in which Texas was, first, annexed and, subsequently, admitted to the Union as a State- was decided, by the United States Supreme Court, the case of Pollard's Lessee v. Hagan [3 Howard (44 U.S.) 212 (1845)], a case involving the question as to whether a State automatically gained Eminent Domain jurisdiction over land that had once been part of the Public Domain (and, thereby, surveyed [under the auspices of the Federal Government] into 6-mile square [36 square mile] Townships, themselves divided into 1-mile square [640 acre] Sections, these subdivided into Lots of 160, 40 or 10 acres [from which we get the real estate term 'Subdivision' for any large parcel of land being developed]) once the land had first been sold by the United States.
The High Court ruled that the State (in this case, Alabama) had such jurisdiction over what had once been Public Lands of the United States, on grounds that (in the words of Justice John McKinley, writing the Opinion of the Court) the right of Alabama and every other new State to exercise all the powers of government, which belong to and may be exercised by the original States of the Union, must be admitted, and remain unquestioned...; and that, once Congress itself erect[s] new States... the municipal sovereignty of the new States will be complete, throughout their respective borders, and they, and the original States, will be upon an equal footing, in all respects whatever.
However, Justice McKinley also noted: [a]ll constitutional [Federal] laws are binding on the People, in the new States and the old ones, whether they consent to be bound by them or not. Every constitutional Act of Congress is passed by the will of the People of the United States, expressed through their representatives, on the subject-matter of the enactment; and when so passed it becomes the supreme Law of the Land, and operates by its own force on the subject-matter, in whatever State or Territory it may happen to be. The proposition, therefore, that such a law cannot operate upon the subject-matter, without the express consent of the People of the new State where it may happen to be, contains its own refutation, and requires no further examination.
How does what is stated in the immediately preceding paragraph- written contemporaneously with Texas becoming a State of the American Union- specifically relate to the subject matter of this very piece? Here's how:
Article VI, clause 2 of the United States Constitution reads thusly: This Constitution, and the Laws of the United States which shall be made in pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the contrary notwithstanding.
In his Commentary of 11 October 2002 for this website, Richard E. Berg-Andersson wrote thusly--
Clearly, the Supreme Law of this Land is as follows:
1. the Constitution of the United States- including all Amendments and any and all Constitutional Law discernable from the decisions and accompanying written opinions of the Federal courts, primarily- and most obviously- those of the United States Supreme Court.
2. all Federal law- including not only statutes passed by Congress and signed into law by a President of the United States (or passed again by two-thirds of each house of Congress over a President's veto) but also all rules and regulations made by a Federal agency under the authority of such statutes.
3. all Treaties to which the United States of America, as a sovereign Nation-State, is a party...
although with one caveat: assuming that, in the cases of categories 2 and 3 above, these laws and treaties subsequently pass constitutional muster- that is, where a case or controversy is brought to court, a given law or treaty (or any portion thereof) comes to be deemed as constitutional (that is, not in conflict with that contained within category 1).
Thus, here in the United States of America, the 'Supreme Law of the Land' is best visualized as a triangle-- with the Constitution at its apex and the Law and Treaties at either end of the base of said triangle. Yes, the Constitution itself ultimately trumps both Law and Treaty alike (an unconstitutional Federal law cannot possibly have been made "in pursuance" of the Constitution and an unconstitutional provision of a treaty cannot possibly be enforced "under the authority of the United States")- which is why it sits atop this triangle: but this does not at all change the fact that Federal Laws and Treaties to which the United States is a signatory (provided these have been ratified by this country's own constitutional process for same) are as much the "Supreme Law of the Land" as the Federal Constitution itself (putting all due paid to the arguments of those who ever proclaim "the Constitution alone" as the Supreme Law of the Land much in the manner of that sola Scriptura of 16th Century Protestant Reformers).
It is, indeed, the 'Supreme Law of the Land' (whether found within a constitutional Federal statute or regulation, an enforceable treaty provision or a clause in the Federal Constitution) per se that (to here use Justice McKinley's verbiage) operates by its own force on the subject-matter, in whatever State or Territory it may happen to be. And, therefore, Article IV, Section 3, clause 1 of that Constitution- requiring Congressional assent before a State may divide itself into smaller States seeking admission into the American Union- became as binding on the then-brand new State of Texas (and immediately upon its own admission as same) as it had been on any previously admitted State or the original 13 or would be on any State to be admitted after Texas, regardless of the will of the People of Texas thereafter: this, thereby, mooting the earlier provision within the Texas Annexation Resolution permitting Texas, solely of its own accord, to divide itself in future
And the fact that this very strain of American Jurisprudence happened to be addressed, at the highest level of the Federal Judiciary, at the very time Texas was so admitted is itself altogether telling!
Yet the mythos surrounding the idea of a State of Texas able to- at any time, and of its own free will- become up to five "mini-Texases", somehow, lived on.
So, such being the case, it might well be proper to here ask- and then answer- the obvious question: just what was the provision for doing so even doing in the Texas Annexation Resolution in the first place?
Even a cursory perusal of a map of the United States of America and its constituent components (Territories as well as States of the Union) in 1844 (the very year before the Republic of Texas was, first, annexed by the U.S. of A. and, then, admitted as a State)- when combined with a little American History from over the generation immediately preceding that year- provides the best answer.
After Louisiana was admitted to the American Union as its 18th State back in 1812, there was in place this salient fact: 9 of the then-18 States were "Slave" (that is: these each legally allowed Slavery with no evident movement towards abolishing it in any of those States)-- in geographical order (from east to west and north to south): Delaware, Maryland, Virginia, Kentucky, North Carolina, Tennessee, South Carolina, Georgia and Louisiana; the remaining 9 States were "Free" (or, at least, "trending Free"- for 5 of these 9 still had not abolished Slavery outright by 1812 but had, instead, opted for so-called 'Gradual Abolition')-- these "Free States" being (again, in generally east to west geographical order): New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania and Ohio.
What this meant was that- even as it was already becoming apparent that the "Free" North was increasing in population at a faster rate relative to the "Slave" South (which meant that the "Free" States would, later if not sooner, eventually be able to outvote the "Slave" States in the Federal House of Representatives)- the even balance between "Free" and "Slave" States in the United States Senate would remain: so long as future "Free" and "Slave" States were admitted to the Union in equal numbers and at, more or less, the same time.
The Northwest Ordinance, originally adopted by the Confederation Congress in 1787 (it would be specifically renewed by the First Congress under the then-new Federal Constitution in 1789), declared that no less than three- nor more than five- States eventually be carved out of the Northwest Territory that Ordinance would govern and also mandated that any such State so created be "Free", not "Slave": Ohio, the first State so created out of the 'Old Northwest', was- in effect- offset by Louisiana, in which Slavery was permitted.
Thus a pattern was established which continued for a time: "Free" Indiana (#2 carved out of the 'Old Northwest') was offset by "Slave" Mississippi; "Free" Illinois (#3 from the 'Old Northwest') was offset by "Slave" Alabama-- but a "spanner in the works" re: this whole scheme had already appeared: the Louisiana Purchase of 1803 (out of which Louisiana [Orleans Territory prior to Statehood] itself had already been created)... the question was now: what to do about future States to be created out of this vast parcel of real estate?
At the start, most of the Louisiana Purchase was left "unorganized" (that is: for the time being, it would have no organized Territorial Government); indeed, while the future State of Louisiana was still the Territory of Orleans, the huge remnant of this area had been known as the 'District of Louisiana'-- once the new 18th State had taken on the name of the Purchase itself, this unorganized District was renamed 'Missouri' (as the Purchase contained the entirety of the valley of the Missouri River and its tributaries east of the Continental Divide)... but, as the end of the 18-teens approached, 'Missouri' (or, at least, its most populous section surrounding the port of St. Louis, located where the Missouri flowed into the Mississippi) was already agitating for Statehood-- as a "Slave" State!
Congress finessed this question with the so-called 'Missouri Compromise' of 1820: Missouri would be admitted to the Union as a "Slave" State while Maine (which had long been agitating to be as politically separated from Massachusetts as it was physically so by the 'Seacoast' of New Hampshire) would be admitted as a "Free" State (thereby retaining the balance between "Free" and "Slave" States in the U.S. Senate- there were now 12 of each); that portion of the unorganized 'District' between the new State of Missouri and the State of Louisiana well to the south had already, the year before, been organized as the Territory of Arkansas (itself, presumably, a future "Slave" State); and, above all else, Missouri would be the only State north of 36 degrees, 30 minutes North Latitude to permit Slavery. In theory, then, any and all future States carved out of the unorganized remnant of the 'District' (becoming, more and more, colloquially known as "Indian Country" [not to be confused with that Indian Territory- what is today the bulk of the State of Oklahoma- created out of the western half of Arkansas Territory in 1834]) would be "Free".
Of course, this would also mean that- before such States could even be created north of 36 1/2° North- new areas for "Slave" States would have to also be acquired by the United States itself (if only to maintain the requisite balance in the Senate): to this end, for one, Florida (acquired from Spain in 1819) became an organized Territory (thus, already viewed as a future "Slave" State of the Union) in 1822. Meanwhile, in the mid-1830s, "Slave" Arkansas achieved Statehood at around the same time as had "Free" Michigan (State #4 created out of the 'Old Northwest').
Which now brings us back to that map of the United States from 1844:
There were, in that year, only three States west (or, in one case, mostly so!) of the Mississippi- all of them "Slave" States: Missouri, Arkansas and Louisiana; at the same time- and to the north of both "Slave" Missouri and "Free" Illinois- there were two large organized Territories presumably already on the road to Statehood (although each contained considerably more territory than they would, later on, as States)- Iowa and Wisconsin, both already predestined to be "Free" (Iowa because it was well north of 36 1/2° North; Wisconsin because it would be the 5th [and, presumably, last] State to be created out of the 'Old Northwest'- thereby fulfilling the terms of the Northwest Ordinance itself). Florida would, simply, have to be one of the States offsetting the Admission to the Union of one of these last-named "Free" States; but another "Slave" State would have to also be admitted in order to allow the other "Free" State to then join the Union-- as things turned out, Florida was to be admitted as the 27th State of the Union via legislation adopted but a couple days after Texas was first annexed; Texas would then come in as the 28th State-- and the admission of these two new "Slave" States (both in 1845) would, thereby, allow for the admission of, first, Iowa and, then, Wisconsin as "Free" States in all due course (after which there would be 15 "Slave" States to offset 15 "Free" States- which was the whole point!).
But the 1844 map already revealed a looming, rather serious, problem ahead for this pattern of admitting alternating "Free" and "Slave" States: for there was- in that year- still a large chunk of that unorganized "Indian Country" originally acquired by the United States as part of the Louisiana Purchase and all of it north of 36 1/2 ° North Latitude beyond which- per the 'Missouri Compromise' then still in force- Slavery dare not be legalized. As, today, the bulk of this very region includes the States of Kansas, Nebraska and the two Dakotas, it is very clear that- back in 1844- it could easily be seen that at least four new "Free" States besides Iowa and Wisconsin might be formed therein...
so just where might four new "Slave" States to offset these then come from? Simple! From splitting soon to be-annexed Texas into five new "Slave" States. (Indeed, this very prospect was one of many things which well agitated opponents of the Annexation of Texas in Congress as 1844 became 1845!)
Of course, all these political machinations became mooted- not only through the then-new State of Texas (swallowed whole, instead of in up to five more easily digestible pieces, by the American Union!) having been admitted "on an equal footing" with all other States "in all respects whatever" (for those reasons already described above)- but through the ensuing chain of events which not only brought about an end to the dispute over the so-called 'Oregon Country' between the United States and the British Empire but also brought a large chunk of what had, hitherto, been northernmost Mexico into the possession of the United States (things that could not yet be foreseen at the time Texas was first annexed and thereafter admitted as a State): for the vast majority of all this real estate newly acquired by the United States of America was itself north of the 'Missouri Compromise' line of 36 1/2 ° North and those in the "Slave" States could now well see the proverbial "Handwriting on the Wall" (even had Texas been 'divvied up' into up to five new States) and did not like what they were reading one bit!
Thus, the 'Compromise of 1850' (which, among other things, brought California in as a "Free" State- giving the "Free Staters" two more Senators than had the "Slave Staters"); the doctrine of "Squatter Sovereignty" and the Kansas-Nebraska Act (and, from that, "Bleeding Kansas") which itself attempted (and failed) to expand Slavery into what had hitherto been the aforementioned unorganized "Indian Country" (meaning that- absent, say, the annexation of northern Mexico and such Caribbean islands as, say, Cuba [then still a Spanish possession]- "Free" States would almost certainly overwhelm those permitting Slavery); the Dred Scott decision (among other things, declaring the 'Missouri Compromise' to have been unconstitutional and, thereby, giving Slavery one last "out" re: the situation described in the previous parenthetical statement); three new "Free" States- Minnesota and Oregon and, finally, Kansas itself (finally making it clear that Dred Scott did not, in fact, alter the status quo to the satisfaction of those in the "Slave" States) followed, seemingly inevitably, by Secession and Civil War... after which (with the 13th Amendment to the U.S. Constitution forever outlawing Slavery throughout the United States) admitting States to the Union as either "Free" or "Slave" itself had become a most moot point.
But, if only for sake of this particular piece, we here continue to assume that Texas could, almost on a whim, split itself up at any time-- even after having been admitted to the Union "on an equal footing" with all other States (and despite the language of the High Court's decision in Pollard's Lessee v. Hagan already cited above); even after the outcome of the American Civil War made the original raison d'etre for even having it do so no longer an at all necessary one-- one surely must seriously consider that which was written within the Opinion of the Court for the United States Supreme Court's decision in the case of Escanaba Company v. the City of Chicago [107 U.S. 678 (1883)]:
The Escanaba Company was a steamship company- based in Escanaba, Michigan- that operated ships carrying cargo and passengers between points along the shores of Lake Michigan as well as places also accessible to its ships via navigable waterways (canals as well as rivers) flowing into (or, in the specific case of the Chicago River, purposively made to flow away from) that great lake.
Meanwhile, the City of Chicago contained (as it still does) numerous drawbridges over the aforementioned Chicago River carrying streets from north and west of what is now its famous 'Loop' (Chicago's downtown Business District) into said 'Loop'; in order to best facilitate both foot and vehicular traffic into and out of its downtown, the city had adopted ordinances specifically regulating at which times (and for how long) a drawbridge over the Chicago River could remain open (ten continuous minutes was the maximum time allowed and, in addition, no such drawbridge could be opened at all during what we, today, would call the morning and late afternoon/early evening "rush hour").
The Escanaba Company found such regulations to have become a rather serious impediment to its own profitability and, as a result, sued the city on grounds that a municipal corporation chartered by the State of Illinois (which is, in fact, what Chicago was- and yet remains, to this day) had no legal authority at all to so regulate so as to impede ordinary shipping on a navigable waterway such as the Chicago River (in part on the basis of Article I, Section 8, clause 3 which grants Congress Power to regulate Commerce with foreign Nations, and among the several States...: the Escanaba Company was here arguing that Chicago, a Civil Division of a State, was unconstitutionally interfering with that which was under specific Federal oversight [of which more shortly]). The High Court's ruling, however, was that the legality (as well as constitutionality) of the city's ordinances on this subject-matter was to be sustained.
The decision in this case largely turned on whether or not Congress had ever so acted so as to have pre-empted the authority of Illinois (and, thereby, Chicago) to regulate traffic on, or over, the Chicago River (under the aforementioned so-called 'Commerce Clause' of the Federal Constitution): the constitutional/legal position of the State in this regard was here at issue precisely because a State's Civil Divisions- its Counties, Townships, Municipalities or any other Districts or equivalent into which a State might be divided [such as, say, School Districts]- are not themselves inherently sovereign; rather, they are each creatures of a sovereign State such that, when and where they might act, they are ever doing so as if same was being done by the State itself [States of the American Union being Unitary, and not Federal, in their respective governance]). As Justice Stephen Field- author of the Opinion of the Court in Escanaba Co. v. Chicago- himself admitted: The power vested in the general government to regulate interstate and foreign commerce involves the control of the waters of the United States which are navigable in fact, so far as it may be necessary to insure their free navigation, when by themselves or their connection with other waters they form a continuous channel for commerce among the States or with foreign countries... [t]he Chicago River and its branches must, therefore, be deemed navigable waters of the United States, over which Congress under its commercial power may exercise control to the extent necessary to protect, preserve and improve their free navigation.
But, Justice Field went on to note, the States have full power to regulate within their limits matters of internal police, including in that general designation whatever will promote the peace, comfort, convenience and prosperity of their people... Illinois is more immediately affected by the bridges over the Chicago River and its branches than any other State, and is more directly concerned for the prosperity of the city of Chicago, for the convenience and comfort of its inhabitants, and the growth of its commerce... If the power of the State and that of the Federal Government come in conflict, the latter must control and the former yield. This necessarily follows from the position given by the [Federal] Constitution to legislation in pursuance of it, as the supreme Law of the Land. But until Congress acts on the subject, the power of the State over bridges across its navigable streams is plenary... The doctrine declared... is in accordance with the more general doctrine now firmly established, that the commercial power of Congress is exclusive of State authority only when the subjects upon which it is exercised are national in their character, and admit and require uniformity of regulation affecting alike all the States. Upon such subjects only that authority can act which can speak for the whole country. Its non-action is therefore a declaration that they shall remain free from all regulation.
The High Court found that Congress had not, in fact, acted- to that point in time- in such a manner so as to preclude Illinois (or, under powers granted it by State law, Chicago itself) from regulating commerce on, or over, the Chicago River (despite its being a navigable waterway). But it was the Escanaba Company's claim (rejected by the Court) that Congress having specifically provided that "navigable waterways leading into the Mississippi and St. Lawrence... shall be common highways and forever free" within the very wording of the Northwest Ordinance (Illinois having been created a State out of that 'Old Northwest') ever trumped control- by either that State or its Civil Divisions- over any navigable waterway in the State (essentially, this was but a variant of the same argument brought forth [and unsuccessfully so] in the aforementioned case of Pollard's Lessee v. Hagan that a mere Federal interest at one time ever trumped any ensuing State/local jurisdiction over a given piece of territory within that State) that caused Justice Field to- within the Opinion of the Court in Escanaba- turn directly to the issue of just how Illinois had become a State within what had once been the Territory Northwest of the River Ohio in the first place, after which he noted:
Whatever the limitation upon [Illinois's] powers as a government whilst in a territorial condition, whether from the [Northwest] Ordinance of 1787 or the legislation of Congress, it ceased to have any operative force, except as voluntarily adopted by her, after she became a State of the Union. On her admission she at once became entitled to and possessed of all the rights of dominion and sovereignty which belonged to the original States. She was admitted, and could be admitted, only, on the same footing with them. The language of the resolution admitting her is "on an equal footing with the original States in all respects whatever"... Equality of constitutional right and power is the condition of all States of the Union, old and new.
So how is the statement ending the preceding paragraph- that "Equality of constitutional right and power is the condition of all States of the Union, old and new"- related to the subject matter of this very piece? "Equality of constitutional right and power" amongst the States means that whatever one State can constitutionally do, another State can also do; but it also means that whatever any State cannot do, another State cannot do either!
Therefore: no State can divide itself, of its own accord, without express permission of Congress-- including Texas!
But still the mythos that it, indeed, can prevails in many a circle: I myself have recently read a book (one of recent vintage, first published within the past half-decade) in which an historian specifically refers to Texas's "constitutional right" (??!!) to divide itself into up to five States!
So, if only to here provide the proverbial "final nail in the coffin" containing this very mythos, I hereby submit the decision of the U.S. Supreme Court in a case known as- yes- United States v. Texas [339 U.S. 707 (1950)] (a case involving whether Texas retained- against encroachment by the Federal Government- the sole jurisdiction over offshore and tidal lands it once had had as an independent Republic: the High Court herein ruled that it did not), in the Opinion of the Court for which Justice William O. Douglas wrote:
The "equal footing" clause... negatives any implied, special limitation of any of the paramount powers of the United States in favor of a State. Texas, prior to her admission, was a Republic... When Texas came into the Union, she ceased to be an independent nation. She then became a sister State on an "equal footing" with all the other States. That act concededly entailed a relinquishment of some of her sovereignty. The United States then took her place as respects foreign commerce, the waging of war, the making of treaties, defense of the shores, and the like.
So, in light of the above, let us now go back again to the very beginning-- in 1845: the Texas Annexation Resolution (specifically containing the authorization, by Congress, of the then-still Republic of Texas to, if it wished, divide itself up into no more than five potentially new States of the American Union [that is: up to four besides Texas itself, to here adhere to the actual language therein]) was specifically accepted by the then-still extant Government of the Republic of Texas (first, by its President Jones and, thereafter, by the Texas Congress itself)-- thus, there is no question whatsoever that the Republic, in the name of its own People, approved of that Republic's Annexation by the United States of America, even before Statehood had been formally conferred upon it (and, under International Law of the time, this alone made Texas- however technically [as, for practical reasons, Texas would still have to be governed under the Constitution of the Republic as well as any and all laws having been made in pursuance thereof until such time as any State Constitution hammered out by the ensuing Constitutional Convention could be fully implemented: as things turned out, Anson Jones would remain, functionally, President of the Republic of Texas until 19 February 1846 when- having been officially informed of the United States Congress having admitted Texas "on an equal footing" with its (now) sister States of the American Union the previous 29 December- he could then turn things over to the first Governor of the new State of Texas, James Pinckney Henderson]- an appendage of the United States of America).
At any time between 23 June 1845 (when the Republic of Texas so formally accepted its so being appended to the United States) and 29 December 1845 (when, by specific Act of Congress, the State of Texas within the United States of America officially replaced the Republic of Texas [despite the aforementioned delay re: Texas itself hearing about it]), Texas could have- right then and there- availed itself of the provision allowing itself to subdivide into up to five States. While the Consent Resolution of the Texas Congress of 23 June of that year specifically referred to "a new State, to be called the State of Texas, and admitted as one of the States of the American Union", the duly delegated representatives of the People of that Republic meeting in Convention beginning 4 July 1845 might well have considered dividing their Republic into fifths (or fourths-- or thirds-- or in half) in the course of said Convention and, thereafter, presented the American Congress with a fait accompli which the American Congress could then either have approved of or rejected (per the American Constitution's own Article IV, Section 3, clause 1) as the members of both houses of Congress might have then seen fit...
this the Texas Constitutional Convention did not do, however: instead, that Convention reported out an instrument of Government contemplating a new State of Texas coterminous with the geographical limits of the Republic of Texas already appended to the United States-- and it was this instrument that the People of Texas (as a whole) themselves ratified and which the Congress of the United States accepted as just such an instrument when they officially welcomed Texas into the American Union via statute towards the end of that same year.
But, once Texas had been so welcomed, "she ceased to be an independent nation. She then became a sister State on an 'equal footing' with all the other States. That act concededly entailed a relinquishment of some of her sovereignty"-- including any and all sovereign power to divide herself up into up to five new States in a manner no other of her sister States were- or have ever been- entitled to avail themselves of: that is, a manner wholly inconsistent with the specific language of Article IV, Section 3, clause 1 of the Federal Constitution itself...
because to permit such a thing would unconstitutionally allow an "implied, special limitation of" a "paramount power of the United States in favor of"- in this case- Texas; because such a thing would most fully fly in the face of the very notions that "equality of constitutional right and power is the condition of all States of the Union, old and new"; and "the municipal sovereignty of" all American "States will be complete, throughout their respective borders, and they"- all of them (fifty, at most recent counting)- "will be upon an equal footing, in all respects whatever".
Thus- in answer to the very question that forms the heading of this piece: 'May Texas *really* split itself into up to five States on its own?'- the correct response must, so very clearly, be a resounding 'No!'
State and Local Government Home