Thursday, April 5, 2018
What Are the Arguments for and against the Secession of States from the Union?
THE REAL NEWS TODAY IS ABOUT ROGUE STATES. There are several. But, the standout is California, which is in a state of rebellion against the Union and the Republic in practical terms. • • • IS SECESSION THE ANSWER. In two words. NO...BUT. • • • WHAT DOES THE US CONSTITUTION SAY? Article IV concerns the relations among and between states and the relationship of all the states to the federal government. ARTICLE IV, Section 1 states : "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. • Section 2 states : "1: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. 2: A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. 3: No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. • Section 3 states : "1: New States may be admitted by the Congress into this Union; but no new State 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. 2: The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State. • Section 4 states : "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence." • • • CASE LAW CONCERNING STATES' RELATIONS. Current Supreme Court precedent, in Texas v. White (1869), holds that the states cannot secede from the Union by an act of the state. More recently, Supreme Court Justice Antonin Scalia stated, "If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede." So, can a state legally secede from the Union? The Texas v. White decision held all acts of secession illegal according to the “perpetual union” of both the Articles of Confederation and subsequent Constitution for the United States. • Some legal scholars have argued for secession as a constitutional right and others as a natural right of revolution. In Texas v. White, while the Supreme Court ruled unilateral secession unconstitutional, it commented that revolution or consent of the States could lead to a successful secession. In Texas v. White, Supreme Court Chief Justice Salmon P. Chase wrote : “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.” The majority opinion struck down the Texas Ordinance of Secession, calling it “null,” and crafted a decision that rendered all acts of secession illegal according to the “perpetual union” of both the Articles of Confederation and subsequent Constitution for the United States. Chase did leave an opening, “revolution or the consent of the States,” but without either, secession could never be considered a legal act. • The American Conservative published and articel in 2012 by Brion McClanahan, the author of The Politically Incorrect Guide to the Founding Fathers and The Founding Fathers Guide to the Constitution. that summarizes UScase law on the question of secession. The entire article is available at < www.theamericanconservative.com/articles/is-secession-legal/ >. McClanahan quotes a 2006 letter of Justice Scalia in which he argued that a the question was not in the realm of legal possibility because the United States would not be party to a lawsuit on the issue; the “constitutional” basis of secession had been “resolved by the Civil War;” and, there is no right to secede, as the Pledge of Allegiance clearly illustrates through the line “one nation, indivisible.” • In the case of Texas v. White in 1869, Supreme Court Chief Justice Salmon P. Chase left only one opening, “revolution or the consent of the States,” but without either, secession could never be considered a legal act. • McClanahan summarizes the Texas v. White decision : "Chase began his legal challenge to secession with a historical discussion of the Union. He suggested that the Union predated the states and grew from a common kindred spirit during the years leading to the American War for Independence. This 'one people' mentality was best articulated by Supreme Court Justice Joseph Story in his famous Commentaries on the Constitution of the United States. Story, who channeled John Marshall and Alexander Hamilton, reasoned that the Constitution was framed and ratified by the people at large, not the people of an individual state and thus [the Constitution] held the same legal position of a state itself formed from many counties. 'The constitution of a confederated republic, that is, of a national republic, formed of several states, is, or at least may be, not less an irrevocable form of government, than the constitution of a state formed and ratified by the aggregate of the several counties of the state.' In one sentence, Story reduced the states to the status of a county, shire, or province, and this general argument was used as a hammer both during Reconstruction and after against the sovereignty of the states. Story additionally concluded, as did Chase in 1869, that the term 'perpetual' found in the Articles of Confederation, deemed the Union indissoluble. Chase surmised that the Constitution simply made the Union 'more perfect' while Story suggested that the Constitution superseded the Articles of Confederation but did not change the permanent and 'perpetual' nature of the Union. Story defended his position with the 'Supremacy Clause' found in Article VI, which states that all laws or treaties made 'in pursuance of the Constitution' were the 'supreme law of the land,' and he pointed to the letter sent by the Philadelphia Convention accompanying the Constitution to the state ratifying conventions that the Constitution aimed at a 'consolidation of the Union.' Hence, to Story and Chase, the Union continued to exist in an altered -- i.e. consolidated -- form and could not be dissolved." Article VI states in Section 2 : "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." Article VI, Section 3 states : "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution..." • McClanahan gives another argument against secession -- the language of Article I, Section 10, which declares that “No state shall enter into any treaty, alliance, or confederation….” To those who support of this explanation, according to McClanahan : "Article I, Section 10 unequivocally shows that the states which formed the Confederate States of America were in clear violation of the Constitution, thus invalidating their government and the individual acts of secession which led to it. Abraham Lincoln indirectly defended this position by declaring the seceding states were in “rebellion” and therefore still members of the Union. The Constitution, then, was still legally enforceable in those states, including Article I, Section 10." Finally, McClanahan points out the argument of other legal scholars that "the original thirteen states may have an argument for secession due to the Declaration of Independence and Thomas Jefferson’s language establishing thirteen “free and independent states.” But the other thirty-seven, formed at least in part through the common territory of the United States, have no claim to secession. They were not states until Congress granted them statehood and consequently never constituted a sovereign legal entity, Texas and Hawaii to the contrary (though even Chief Justice Chase suggested that Texas had but lost its sovereignty when it joined the Union in 1845). • • • THE ARGUMENTS THAT STATES CAN SECEDE. Because secession is an extra-legal act of self-determination by the people of a state or states, once the States have seceded from the Union, the Constitution is no longer in force in regard to the seceded political body. If the Constitution is no longer in force -- because 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. But, the Union, says McClanahan : "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." • In the Texas v. White decision, McClanhan shows that Chief Justice Chase "implicitly concluded 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." • • • IS SECESSION ONLY AN ARGUMENT FOR PROGRESSIVE STATES? Again, McClanahan explains : "The checking and controlling influences which afford safety to public liberty, are not to be found in the government itself. The people cannot always protect themselves against their rulers; if they could, no free government, in past times, would have been overthrown. Power and patronage cannot easily be so limited and defined, as to rob them of their corrupting influences over the public mind. It is truly and wisely remarked by the Federalist, that 'a power over a man’s subsistence is a power over his will.' As little as possible of this power should be entrusted to the federal government, and even that little should be watched by a power authorized and competent to arrest its abuses. That power can be found only in the states. In this consists the great superiority of the federative system over every other. In that system, the federal government is responsible, not directly to the people en masse, but to the people in their character of distinct political corporations. However easy it may be to steal power from the people, governments do not so readily yield it to one another. The confederated states confer on their common government only such power as they themselves cannot separately exercise, or such as can be better exercised by that government. They have, therefore, an equal interest, to give it power enough, and to prevent it from assuming too much. In their hands the power of interposition is attended with no danger; it may be safely lodged where there is no interest to abuse it." • That is a "states rights" argument, pure and simple. And, states rights is the fundamental argument used by conservatives to defend the position that the federal govermnent should be small, weak, and able to exercise ONLY those powers expressly granted to it in the Constitution -- it is the "enumerated powers" argument. • During the Philadelphia Convention of 1787, Gouverneur Morris of Pennsylvania set out this argument : “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. • So, for conservatives (non-federalsits in the Founders' debates), the states still had all powers not delegated to the general government, as the Tenth Amendment to the Constitution clearly illustrates? Note that every state proposed a “Tenth Amendment” in their suggested bill of rights in the months after ratification. John C. Calhoun wrote that, “I maintain that sovereignty is in its nature indivisible. It is the supreme power in a state, and we might just as well speak of half a square, or half a triangle, as of half a sovereignty.” In other words, delegated powers were still retained by the people of the states at large for their exercise if they chose to rescind that delegation. Sovereignty can never be divided or surrendered in part. If the states had it in 1776 as Jefferson wrote, then they maintain that sovereignty to this day and thus can exercise that sovereignty through an act of interposition or withdraw. • As for those who suggest that a state carved from the common property of the United States does not have the same sovereignty as the original thirteen states, McCalahan quotes Jefferson, who made clear in his Northwest Ordinance of 1787 that new states would enter the Union on “equal footing” with the existing states, meaning that they had the same rights, privileges, and immunities as the original thirteen, including the right of interposition and withdrawal. Jefferson himself authored the Kentucky Resolutions of 1798, a clear indication that he believed as much. Kentucky was not one of the original states, but the people of Kentucky had the same right of recourse that the people of Virginia had in opposing the unconstitutional Sedition Act of 1798. If the argument against this position is correct, then the original thirteen states, themselves pared from the territory of Great Britain, would be illegal and illegitimate. That is not the case. • McClanahan says that the energy being placed in the various secession movements today "would be more productively utilized in calling for conventions to amend the Constitution. Perhaps limiting the President to one term, as the Hartford Convention proposed in 1815, requiring a two-thirds majority to borrow money, or creating a committee of states to act as a final check on the constitutionality of federal measures could be beneficial alterations to the Constitution. The Founders would certainly agree that changes could and should be made through the amendment process. • The Constitution is very clear about amending it : "Article V. The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." Add to Article V the Supremacy Clause of Article VI : "Section 2: 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. Section 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." • If you feel that this gets us right back to the original question -- can a state secede from the Union -- you are right. Just as amending the Constitution is possible, and federal laws are supreme and every federal, state and local official is bound by oath to support the Constitution -- all of it, not merely what favors a given cause -- then, we do not know whether a state can secede. • • • BUT, CALIFORNIA AND OTHER DISOBEDIENT STATES SHOULD BE BROUGHT TO ORDER. Instead of the secession movement in California, and elsewhere in America, that is getting genuine attention from political pundits, the likely to succeed idea is intra-state secession -- a section of a state splitting off to form its own state. This has been growing in popularity. And, Article IV, Section 3, of the Constitution provides the procedure for doing it (see above forthe language). If half od California is so Progressive that the other conservative half cannot support living under a Progressive regime, then splitting into two states can be the answer. Joel Kotkin, a fellow at Chapman University in Orange, California, and author of The Human City: Urbanism ForThe Rest Of Us, told Fox News, “The worst thing in the world to be is the red part of a blue state.” Kotkin adds that : "Those running California are 'fundamentally authoritarian' with 'not a lot of tolerance for any kind of economic or political diversity.' As he puts it, their attitude is ’We know the truth, we know what’s right, and it has to apply to everyone.' " Kotkin further notes it’s not just California where this blue versus red battle is brewing, but up the West Coast, where eastern Oregon battles against the policies of Portland, and eastern Washington against Seattle. And, there’s Chicago against downstate Illinois, and New York City versus upstate New York. These policy divisions are not just economic, but often traditional versus Progressive politics regarding issues such as marijuana, gun control and the environment. • • • DEAR READERS, Vermont split from New York in 1791, Maine split from Massachusetts in 1820, and West Virginia split from Virginia during the Civil War in 1863. There haven’t been any states formed by secession in modern US history. As for California and New York today, there is one other course to be taken. As every conservative analyst in the US has pointed out, state legislatures and officials cannot simply ignore federal laws, much less pass legislation to deliberately erase federal law in their state. It is time for the Department of Justice to sue such states to force them into complicance with the Supremacy Clause and federal law. It is also time to sue state and local officials, even under criminal statutes, who are flaunting their Progressive positions and trashing the Constitution in the process. These DOJ actions would surely go some way to bringing a renewed sense of order to the Republic and its Constitution.