But what if secession doesn't succeed?

As there's been some advocacy of secession in the comments, I thought I would examine how this might occur in practice, whether legally or not.

A lot of people seem to think the Civil War settled the issue of whether states have the right to secede, except it did not. The war -- not a war according to the federal government and officially never declared (but see below*) -- did not begin over secession; it began when Fort Sumter -- federal property within the state of South Carolina -- was fired upon. The war began not when the individual states seceded, but when the shooting started in April of 1861. Had the feds not been fired on, many have argued that the matter might conceivably have been resolved in the South's favor in the Supreme Court -- the rhetoric in Lincoln's first inaugural address notwithstanding.

But of course that did not happen, and unfortunately, there is nothing in the Constitution about secession, or the right to secede. It neither expressly forbids nor expressly permits a state to secede. So whether secession is constitutional is a very tricky one, and the emanations -- whether express or implied -- from the various express or implied penumbrae, could be argued forever.

I think the closest the Constitution comes to touching on it is this:

Section 3. New states may be admitted by the Congress into this union; but no new states shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress.
Might "new state" be interpreted as allowing the formation of a new state that was NOT a part of the union? (Nice try, maybe, but I have a feeling that would lose in the Supreme Court, and in Congress.)

Of course, there are always the words in the Pledge of Allegiance. Here's the 1892 version:

"I pledge allegiance to my flag and the republic for which it stands: one nation indivisible with liberty and justice for all."
And the current version (under God was added in 1954):
"I pledge allegiance to the flag of the United States of America and to the republic for which it stands: one nation under God, indivisible, with liberty and justice for all.
So, whether it's "one nation under indivisible" or "one nation under God, indivisible," the word "indivisible" would seem to imply that regardless of any legal or theoretical right to secede, since 1892 there has been no right to secede in the moral and patriotic sense. Not for those who believe in the pledge, anyway. But again, the pledge is only binding in the moral sense.

There is also the Declaration of Independence, which, by declaring that "the people" have an inherent right to "alter or abolish" abusive governments, could be said to recognize implicitly the right of one state to secede from another:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. -- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, -- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
The Declaration is not the supreme law of the land, however. You can't march into court and claim your declarational rights. It recited the natural, moral right of the colonists to form a new state -- which is of course also the moral right of any future people living under any abusive or oppressive government.

Exactly how would a state secede, though? Would it require majority consensus? Two thirds consensus? Would it require the consent of a majority of other states?

Maybe a constitutional amendment spelling out the right to secede is in order.

But even if we assume the existence of such a procedure, I'm not at all sure it would satisfy many of the people who are calling for secession, because they would still have to persuade their state legislature to declare secession and enact the proper ordinances.

Sounds like secession is a pain in the ass.

Of course, if citizens who want to secede can't manage to persuade a state legislature to go along with them, then the state wouldn't be seceding -- whether legally or illegally. The angry citizens would have to resort to civil war.

Civil war is also a pain in the ass.

* Or was war declared? I'd hate to think that historians can't even agree on a simple thing like that.

The following proclamation has been widely interpreted as a Declaration of War:

By the President of the United States:
A PROCLAMATION.

Whereas, The laws of the United States have been for some time past and now are opposed, and the execution thereof obstructed, in the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the Marshals by law :

Now, therefore, I, ABRAHAM LINCOLN, President of the United States, in virtue of the power in me vested by the Constitution and the laws, have thought fit to call forth, and hereby do call forth, the Militia of the several States of the Union, to the aggregate number of 75,000, in order to suppress said combinations, and to cause the laws to be duly executed. The details for this object will be immediately communicated to the State authorities through the War Department.

I appeal to all loyal citizens to favor, facilitate, and aid this effort to maintain the honor, the integrity, and the existence of our National Union and the perpetuity of popular government, and to redress wrongs already long enough endured.

I deem it proper to say that the first service assigned to the force hereby called forth will probably be to repossess the forts, places, and property which have been seized from the Union, and, in every event, the utmost care will be observed, consistently with the objects aforesaid, to avoid any devastation, any destruction of, or interference with property, or any disturbance of peaceful citizens in any part of the country; and I hereby command the persons composing the combinations aforesaid to disperse and retire peaceably to their respective abodes within twenty days from this date.

Deeming that the present condition of public affairs presents an extraordinary occasion, I do, hereby, in virtue of the power in me vested by the Constitution, convene both Houses of Congress. The Senators and Representatives are therefore summoned to assemble at their respective chambers at twelve o'clock, noon, on Thursday, the fourth day of July next, then and there to consider and determine such measures as, in their wisdom, the public safety and interest may seem to demand.

In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed.

Done at the City of Washington, this fifteenth day of April, in the year of our Lord one thousand eight hundred and sixty-one, and of the independence of the United States the eighty-fifth.

ABRAHAM LINCOLN.

BY THE PRESIDENT.

posted by Eric on 11.21.09 at 12:16 PM










Comments

While your point has a certain validity, I would have to argue that the Civil War did settle the question. Sure, in the most trivial sense the War was not fought over seccession explicitly. But that was only because one side claimed it had always and obviously had the right to (and was therefore defending themselves from unprovoked attack [rolleyes]) while the other claimed that no such seccession was possible. But the courts of law aren't the only place that legal principles are settled. Having won the war and unified the country again, the question was resolved by force, and the law *defined* through victory. Sure, people might eventually completely change the national character and reading of the law, but in such cases no legal opinion would matter anyhow.

Patrick   ·  November 21, 2009 1:22 PM

But did it really settle the question of legal, peaceful secession?

Eric Scheie   ·  November 21, 2009 1:39 PM

As Forrest Gump's mother might have said, "secession is as secession does." More likely, any real secession movement would be a consequence of a preexisting and widespread civil opposition to an abusive or repressive government. Ultimately, this would become a contest between grass-roots freedom-loving individualists and elitist command-and-control bureaucrats and collectivists. The former group would likely be numerous and well-armed, and the latter group may be fewer in number, but would attempt to wield the police/judicial/military powers of the state. At this point, talk of secession is more bluster than call-to-action. It is symptomatic of people feeling that no one in Washington DC is listening, and so they take evermore extreme positions in hope that politicians will wake up and notice that the house is on fire.

Tom   ·  November 21, 2009 1:47 PM

I believe the right to leave the union was implicit in the fact that the several states could voluntarily join. There was nothing in any state's acceptance of statehood that once a state joined it was like the mob and you could never leave. Even if there were limitations when territories became states, how could that apply to the original thirteen?

Does it really make sense that the legislatures of the original thirteen would have ratified the constitution if it meant they couldn't leave if it turned out to be a mistake?

JKB   ·  November 21, 2009 2:10 PM

this is sort of related question:
"As of July 2009, California's budget shortfall was 49.3% of its general funds. States have considered drastic options to fill such gaps.

"I looked as hard as I could at how states could declare bankruptcy," said Michael Genest, director of the California Department of Finance who is stepping down at the end of the year. "I literally looked at the federal constitution to see if there was a way for states to return to territory status."

here

newrouter   ·  November 21, 2009 2:15 PM

The settling of political differences really requires separating the cities from the countryside:

http://www.classicalvalues.com/archives/2009/11/the_blue_and_th_1.html

That is the real division between conservative and liberal culture.

M. Simon   ·  November 21, 2009 4:06 PM

A right to secede was the great unanswered question in the Constitution. And that led to a great unnecessary war.

There are really two, some would say three, questions about secession.

First, the original 13 states existed before the United States. They clearly agreed to join and could honestly argue they also had a right to leave.

But other states - the majority by 1860 - had been formed from federal territory after the Constitution was adopted. They had never been independent. Their right to secede, if any existed, might be quite another matter.

Texas was unique since it had been an independent nation.

The legal situation at Sumter is not as clear as secessionists would like. In fact Sumter played no role in secession as a conceptual right.

The writer is correct about Ft.Sumter. The fort was on a small island and was not federal territory. Technically it was not in South Carolina at all.

The island was artificial and had been created by the federal government. As such the state had no claim to it whatever. Lincoln knew that and had the duty to respond to an attack on federal territory and/or our military.

In the end legalities meant little. The South was enraged whether it made sense to be so or not.

K   ·  November 21, 2009 4:55 PM

oops. make my previous read:

he fort was on a small island WHICH was not STATE territory.

K   ·  November 21, 2009 5:37 PM

Secession would be impossible without military force--including air and nuclear power.

Brett   ·  November 22, 2009 7:54 AM

There are three grand principles our States can call upon—either one of which—can be used to justify secession:

1. The Declaration of Independence (aka Declaration of Secession) establishes the right of the people to withdraw from a government not effecting their safety and happiness as one of our Natural God-given rights as so stated: “… that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government …”

2. The Constitution reserves ALL unspecified powers to the individual States as clarified by the Tenth Amendment. The federal government was never delegated the authority to dictate the terms for a State to exercise their right to withdraw from the agreement we call the Constitution, and therefore the States, and the States alone, decide the issue for themselves.

3. Finally, the States are clearly the superior sovereign party in the Compact between the States (aka the Constitution), and therefore, they cannot be controlled, or dictated to, in the making of any political decision by an inferior political entity, created by these same States, such as the central government.

And for goodness sake, the Pledge of Allegiance is NOT a Founding document -- it was written by a socialist in 1892.

Liberty Frog   ·  November 22, 2009 8:03 AM

In Canada, the right of the provinces to secede has been expressly recognized. The rationale for it is the Declaration of Independence. Canada, being British North America, is in a situation where the American Revolution happened to us and is part of our history, whereas the Civil War happened to our neighbours and is somebody elses' history, notours. So the right to secede for us was established in 1783. It's all very well for somebody in Toronto to insist that separation is treason and is not possible, and a lot of them do. But then the sun goes down, and on come the lights of Rochester across the lake, proving them wrong.

Of course, if an American state attempted to separate today, the American people would be faced with the fact that, if they allow it, then the Civil War was fought, and its terrible sacrifices made, in vain. I have complete sympathy with the point of view that that can never be allowed to become the case, and I'd expect that point of view to prevail. By contrast, there's never been any kind of sacrifice made to keep Canada united, and there's no reason to make one now.

ebt   ·  November 22, 2009 11:25 PM

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