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Is Secession Legal?

Secession legal?        Secession illegal? From the AmericanConservative

By Brion McClanahanDecember 7, 2012

With all fifty states offering petitions to the central government to leave the Union, the legality of secession is now front page news in the United States. Can a state legally secede from the Union? Many, including Supreme Court justices Antonin Scalia, and Supreme Court Chief Justice Salmon P. Chase suggest no……….but…….there’s more.  Read On…!

Excerpts from article

These arguments seem like a fairly strong case against secession.Their various opinions and conclusions, however, all have gaping holes.

Scalia’s positions are the most vapid. Secession, as accomplished by the Southern states in 1860 and 1861 and as discussed by the North at the Hartford Convention in 1815, is an independent act by the people of the states, and accomplished in the same fashion as the several conventions that occurred throughout early American history. The United States would never be a party to a lawsuit on the issue because secession, both de facto and de jure, is an extra-legal act of self-determination, and once the States have seceded from the Union, the Constitution is no longer in force in regard to the seceded political body. This same rule applies to the Article I, Section 10 argument against secession. If the Constitution is no longer in force—the States have separated and resumed their independent status—then the Supreme Court would not have jurisdiction and therefore could not determine the “legality” of the move.

The Union, then, through a declaration of war could attempt to force the seceded States to remain, but even if victorious that would not solve a philosophical issue. War and violence do not and cannot crush the natural right of self-determination. It can muddle the picture and force the vanquished into submission so long as the boot is firmly planted on their collective throats, but a bloody nose and a prostrate people settles nothing. Oliver Ellsworth of Connecticut said in 1788 that he feared a “coercion of arms” in relation to a delinquent state. “This Constitution does not attempt to coerce sovereign bodies, states, in their political capacity. No coercion is applicable to such bodies, but that of an armed force. If we should attempt to execute the laws of the Union by sending an armed force against a delinquent state, it would involve the good and the bad, the innocent and the guilty, in the same calamity.” Ellsworth recognized, as did the majority of the founding generation, that force did not destroy sovereignty. It created artificial supremacy, but sovereignty, the basic tenant of the founding, could not be surrendered in such a manner. Sovereignty, in fact, cannot be surrendered at all; it can be delegated, as in the powers granted to the general government in Article I, but never surrendered.

The other issues involved in the debate are slightly more complicated, but in several instances come back to Scalia’s more simplistic analysis. In the Texas v. White decision, Chase implicitly reasoned that the Union was an “indissoluble” contract between the “American people” and the federal government, or in this case the people of Texas and the federal government. All contracts are intended to be perpetual. But if this were the case, how could nine States ratify a new Constitution while four States remained part of another Union in clear violation of the language of the Articles of Confederation. Changes to the Articles required the consent of all thirteen States, not nine, and thus the Constitution can be viewed, in part, as an act of secession.

Moreover, James Madison argued that the Union was a different type of contract. “We are not to consider the Federal Union as analogous to the social compact of individuals: for if it were so, a majority would have a right to bind the rest, and even to form a new constitution for the whole… .” The Constitution was framed by the unanimous consent of the States present in convention assembled in Philadelphia, but it had no teeth until the States, in convention, ratified it. Even at that point, Madison suggested, the States could not bind the rest into accepting the document or remaining in the Union. The Constitution does not have a coercive principle, as Ellsworth called it. An “indissoluble” Union would suggest that it does.

Waging war “against them (the States)” is an act of treason, and as per the Constitution, a State can only be “protected” by the central government on the application of the legislature or the executive in the case of invasion. Lincoln violated both constitutional safeguards against coercion by the central government in 1861, of course only if the states remained in the Union, as he insisted they did. If not, war required a declaration from Congress, something Lincoln did not have, and by declaring war, Congress would have recognized the Confederate States as a legitimate government. Either way, Lincoln violated the Constitution, thus rendering the “bloody nose” argument against secession void.

During the Philadelphia Convention of 1787, Gouverneur Morris of Pennsylvania outlined “the distinction between a federal and a national supreme government; the former being a mere compact resting on the good faith of the parties, the latter having a complete and compulsive operation.” If the Constitution established a federal government, and it did, then the Constitution did not have a “compulsive operation.” In essence, the people of the states in convention could either interpose their sovereignty to arrest the acts of the general government or withdraw from the Union. Morris, a nationalist, recognized that the states still held sway when he suggested that the Constitution be voted on by state and that the states, not a consolidated people, had to ratify the document. The Constitution as ratified in 1787 and 1788 is “a mere compact resting on the good faith of the parties.” That compact can be unilaterally broken at any point by the same people of the States which ratified it.

But of course, the simple fact is that sovereign states cannot relinquish their sovereignty by implication– but only by express language. For otherwise, any would-be conqueror could, like Lincoln, simply invade any sovereign state via similar allegations, and similarly declare all pesky legal technicalities “settled on the batttlefield.”
Under such a claim, all national sovereignty would be null and void, replacing it with the Law of the Jungle and Brute Force, and resulting in global despotism; no claims could be made to original intent.

And of course, neither the Articles of Confederation nor the Constitution contains any express intent to relinquish the sovereignty of any state. On the contrary, a thorough study of the issue proves that every state fully intended to retain its sovereignty, and was expressly assured of such.

The problem, of course, is that history is written by the victors, while the first casualty of war is always truth; and meanwhile the war transferred virtually all sovereignty from the People of each state to the federal government, which became a ruling de facto oligarchy ever since.

Therefore these arguments against the right of secession, are simply token responses by an empire in validating its own absolute power.

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3 Comments

  1. There’s not much in the Constitution which might serve to make secession “legal”.

    In my view, it’s not about “legal” at all, it’s about right and wrong. As it stands, government can make most anything “illegal”, and already has!

  2. I don’t really know,but I do know that both history and the US Constitution have been tinkered with too many times by too many people wanting to change it. And we cannot forget that the Supreme Court has made decisions that seemed quite unconstitutional as far as I am concerned. Our nation is falling apart so rapidly that one cannot keep up with much of anything anymore, and while that is happening the federal government is becoming MUCH more militant than ever in my lifetime. Ditto city police. I trust none of them any more when there was a time I trusted them whole-heartedly. The author of the article seems to believe states have every right to secede, just must do it in the correct manner. Personally, I believe it is legal for anyone to get out of anything that is hurting them.

  3. I have never known anything in the Constitution the bound any territory to the union via statehood. As this country was divided into territories and the citizens of each territory voted for statehood, does it not also allow the citizens to refute statehood for territory status? I’m sure a lot of us would rather not be bound to the union anymore. I see no real benefit anymore. Even as a territory we still had the benefit of a standing army when called for.

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