Hat tip: Mises Daily
by Clifford F. Thies
Posted on 4/28/2009
Can states secede? There are three levels on which this question can be answered:
1. the inalienable right of secession,
2. the international law of secession, and
3. the US law of secession.
All three say yes.
The Inalienable Right of Secession
The Declaration of Independence of the United States of America invokes the self-evident truths that all men are created equal and are endowed by their Creator with certain inalienable rights, that governments are formed to protect these rights and gain their just powers from the consent of the governed, and that when a government becomes abusive of these rights, it is the right — no, it is the duty — of the people to alter or abolish that government.
To say governments were formed to protect the rights of men would be historically incorrect. Almost all governments were formed by ruthless men exerting their will over others through the use of force. Some governments, over time, evolved toward the rule of law, perhaps only because their rulers saw that this would sanction their own continued enjoyment of the wealth that they possessed. In some instances, this evolution involved one or more “revolutions” in which those who were governed were able to better establish the rule of law.
The language of the Declaration should not be construed as an argument about the historical origins of government but, rather, as what would be true and just to an enlightened person, namely, that as persons and as communities of persons, we have the right and the duty to alter or abolish governments that become abusive of our rights. As Benjamin Franklin once put it, “Rebellion to tyrants is obedience to God.”
The concept of an inalienable right of secession was not original to the American Revolution. It can be traced to the scholastics, to Reformation politics, and to the most ancient Greek and Hebrew writings. Without going into a dissertation on the subject, let me simply point to the flag of the state of Virginia, which was designed by Thomas Jefferson. It depicts a female warrior (Athena) standing atop a slain tyrant (Zeus).
According to legend, Zeus, the greatest and most terrible of the gods, was supposed to be the god of law, yet he was himself lawless. When he heard that he would sire a child who would destroy him, he swallowed his wife whole to prevent it. But the child grew within him and then burst from him fully grown. This child was Athena, the goddess of victory, liberty, and peace. And, she did indeed slay her father. It should be easy to see, in this legend, how the rule of law might be established from a government formed through the use of force.
Now, does a massive increase in taxes, in spending, and in the federal deficit constitute such an abuse of the rights of men as to justify secession under the doctrine of an inherent right to secede? I don’t think so. Ask me about the inherent right to secede when the government starts to restrict our freedom of speech, to shut down the independent media, to confiscate our guns, and to take away our children.
The International Law of Secession
The international law of secession is in the process of emerging at this very time. The U.N. Universal Declaration of Human Rights indicates that all people have the right to a country. A corollary of this is that no people should long be kept in nationless status, e.g., the Palestinians. A further corollary of this is that no people should long be kept in any subjugated status, such as by being citizens or subjects of a country from which they are alienated.
Now, as a practical matter, consideration has to be given to whether an identifiable people exist in an identifiable place. At least, this is the current thinking. But, if these several elements come together: an identifiable people in an identifiable place that grouse under the subjugation of the larger nation, there is a growing consensus that this people and place can be severed from the larger nation, even by rebellion and with support from outside the larger nation. East Timor, Eritrea, and the devolutions of the former Soviet Union and Yugoslavia (including the ongoing situation in Kosovo) illustrate the development of the international law of secession.
Turning to the United States, it is now well established that the country consists of so many “red” (Republican) and “blue” (Democrat) states, along with a few “purple” (battleground) states. Even in a so-called landslide, like 2008, only a few states “flip” from Republican to Democrat, and these states go from close Republican to close Democrat. Furthermore, the whole purpose of elections has become to decide whether Democrats get to raise taxes on Republicans while adjusting the Alternative Minimum Tax so as to minimize the impact on themselves, and whether Democrats get to force acceptance of gay marriage onto Republicans or whether Republicans get to force unwanted pregnancies onto Democrats. In other words, there no longer is any pretense of federalism in which domestic policy is left to the states of the Union.
Under these conditions, it can be argued that, were either party to fall into permanent minority status, and the other party to establish hegemonic control over the so-called federal government, the people in the other party could be said to be an alienated, identifiable people in an identifiable place, and could assert a right to secede under emerging international law.
The argument for secession under emerging international law might be strongest for Alaska. Geographically, the place is disjoint from the other states of the Union, making it an identifiable place. Furthermore, under their state constitution’s explicit right of privacy, possession of small amounts of marijuana is a right; yet, the so-called federal government imposes the costs of its war on drugs onto the citizens of Alaska.
Furthermore, the people of Alaska have been long frustrated in developing their natural resources because of the opposition by majorities in the “lower 48.” Indeed, as a separate nation, Alaska might be the freest place in the world, with zero taxes because of its wealth in natural resources, well-established civil liberties, and a socially tolerant, live-and-let-live attitude among its people.
Following Alaska, states such as Florida and Texas would have the next best arguments for secession under international law, since they are themselves on a seacoast and their secession would not much disrupt the road, transmission wire, pipeline or other infrastructure networks of the other states.
States such as Utah and Kentucky, being landlocked “enclaves,” would have a relatively weak argument. On the other hand, it would be relatively easy for these states to join with other states that have already seceded or are in the process of seceding, and form a patchwork of independent republics that develop compacts to facilitate interstate travel, commerce, water flow, transmission of electricity, and so forth.
“The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.”
– Chief Justice Salmon P. Chase speaking for the U.S. Supreme Court in White v. Texas
US Law of Secession
The US law of secession is thought to have been decided by the US Supreme Court in White v. Texas, following the Civil War. The actual matter to be decided was relatively insignificant. The Court used the occasion to issue a very broad decision. Chief Justice Chase, speaking for the Court, said,
The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.
Notice that the second sentence appears to totally contradict the first sentence.
The first sentence I just quoted invokes words such as “perpetual,” and in so doing may create the impression that the Supreme Court decreed that no state could ever secede from the Union. But, on careful reading, the relationship between Texas and the other states of the Union is merely “as indissoluble as the union between the original States.” In other words, Texas, having been a nonoriginal state, has no greater right of secession than do the original states. As to how states might secede, the second sentence says, “through revolution or through consent of the States.”
As to why a state might secede, either through revolution or through consent, Chief Justice Chase presciently discusses the 9th and 10th Amendments to the US Constitution, which reserve to the states and to the people thereof all powers not expressly granted to the federal government, and that the design of the Union, implicit in the very name “United States,” is the preservation of the states as well as of the Union:
the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government.
The so-called United States of America ceases to exist when the political majority of the country attempts to rule the entire country as a nation instead of as a federal government. In such a circumstance, the “indestructible union of indestructible states” of which the Court speaks is already dissolved.
As to whether “Texas” continued as a state and, furthermore, as a state of the United States during the period of rebellion, the Court made clear that it continued as both although certain rights that normally accrue to states of the United States fell into suspension. Presumably, if Texas had seceded “with the consent of the States,” Texas would have been able to free itself from the Union described as the “United States,” and could have considered joining into another Union described as the “Confederate States.”
Also presumably, if the Confederate States of America had been able to impose their will onto the other states of the United States through force or had been able to induce the other states to consent, Texas and the other states of the Confederate States could have seceded from one Union and joined into another. But, the outcomes of wars are problematic.
How Do “the States” Consent to Secession?
The wide-ranging discussion of the Court in White v. Texas contains a lot of intriguing and obtuse comments. How, for example, do “the States” give consent to the secession of a state? The Constitution, as the Court says, does not envision such a thing, and does not provide a process. What if the legislatures of “the States” sent delegates to a convention that drafted a constitution for a more perfect union, which would take effect for those states that ratified it, providing that at least a two-thirds majority of them did so? For those who were not homeschooled, it may be necessary to point out that this was the process through which the Constitution of 1789 was created and through which eleven states seceded from the union provided by the Articles of Confederation, leaving Rhode Island and North Carolina as the only two states in that prior union. (Those two states eventually also seceded from the prior union, thereupon making it a nullity, and joined into the new union.)
While the Constitution of 1789 required the secession of 9 out of 13 states, does this mean that a supermajority of the states would be necessary for consent? It seems to me that a supermajority would not be necessary, but only a simple majority, for a US version of what is called the “Velvet Revolution” in the former Czechoslovakia, now the Czech and Slovak Republics. In that country, dissolution involved nothing more earth shattering than a bunch of accountants who scurried about the country, totting up the value of the assets of the national government that would fall into the possession of each succeeding government so as to determine how to fairly apportion the national debt to the succeeding governments. Of course, in that case, both succeeding governments transitioned to membership in the European Union, guaranteeing the free flow of goods, labor and capital between them and the other members of the E.U., as well as guaranteeing certain civil liberties and democratic processes to the persons in each of the succeeding republics.
Looking at the electoral maps of the United States of recent presidential elections, it appears that the potentially disaffected red states of a socially liberal, economically socialist blue nation constitute a nearly compact, self-contained block from the southeast coast to the Rocky Mountain west, plus Alaska. Indiana and Ohio appear as two purple states jutting into an otherwise blue Great Lakes region.
New Hampshire is a purple state in a deeply blue New England (but, being a coastline state, it would not matter much that it was not connected by land to other breakaway states). Contrariwise, Colorado and New Mexico are two purple or blue states in the Rocky Mountain region that might wind up as enclaves of Old America amidst the independent republics of New America.
Of course, once it becomes clear that a majority of the states — and specifically those that are the most productive — are seceding, the remaining states of Old America will have to consider their options. Would they want to bail out the corporations, the unionized public-school teachers, municipal workers, and the UAW, and the bankrupt states of California and New Jersey, among others, when the burden falls much more heavily onto them?
A state like Minnesota, with a solid work ethic, which tends to vote Democratic in presidential elections, might think it could do better with New America than with the moochers of Old America. Even Iowa, where they bury farmers only three feet deep nowadays, so they can still get their hand out, will have to weigh the pros of the ethanol subsidies they receive versus the cons of the taxes they will have to pay to subsidize everybody else. Possibly, once the rush gets underway, the only “state” that will be left in Old America will be the District of Columbia.
Clifford F. Thies is the Eldon R. Lindsay Chair of Free Enterprise at Shenandoah University in Winchester, VA. Send him mail. See his article archives.