Secession

Rick Perry, governor of Texas, has expressed sympathy for proponents of the secession of Texas from the United States. “Liberal” commentary to the contrary, current secessionist sentiment arises not from a desire to own slaves, or otherwise to deprive certain groups of their constitutional rights, but from righteous and rightful opposition to the hell-bent-for-fascism-regime now ascendant in Washington.

The question then arises whether Texas could secede peacefully, under the Constitution of the United States. An argument for secession can be found in the Treaty of Annexation between the people of Texas and the United States of America (1844). Article II of the treaty reads as follows:

The citizens of Texas shall be incorporated into the Union of the United States, maintained and protected in the free enjoyment of their liberty and property and admitted, as soon as may be consistent with the principles of the federal constitution, to the enjoyment of all the rights, privileges and immunities of citizens of the United States.

A case can be made (if not won) that the federal government has abridged the “rights, privileges and immunities of citizens of the United States,” including Texans, through various unconstitutional actions. (I will not attempt to detail those actions here, for they are legion. I have written about some of them in many of the posts listed here. Robert Levy and William Mellor have analyzed the most egregious unconstitutional actions of the U.S. Supreme Court in their book, The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom.)

There is, moreover, a general case for secession as a constitutional act. I begin by referring to an anti-secessionist, one Timothy Sandefur of the blog Freespace. Sandefur — a lawyer of wide-ranging abilities and interests — has written “How Libertarians Ought to Think about the U.S. Civil War,” which also instructs us how to think about secession. He avers that “the Constitution does prohibit secession.”

Sandefur’s argument that the Constitution prohibits secession is an inferential one that rests on his conclusion that the action of a State (qua State)

cannot change the nature of the federal Constitution as adopted in 1787: it is a binding government of the whole people of the United States. No [S]tate may unilaterally leave the union.

Actually, Sandefur (and other federalists) to the contrary notwithstanding, the people of each State adopted the Constitution, not the whole people of the United States. And the people of each State were at liberty not to adopt the Constitution. In evidence, I introduce Article VII of the Constitution:

The ratification of the conventions of nine [S]tates, shall be sufficient for the establishment of this constitution between the [S]tates so ratifying the same.

Note, first, that ratification was accomplished State-by-State, not by the people of the United States as a whole. Note, second, that although the Constitution could have gone into effect upon being ratified by the conventions of only nine of the thirteen States, it would have been binding only upon the States whose people ratified it, that is, “between the [S]tates so ratifying the same.”

That all thirteen States did, eventually, ratify the Constitution is beside the point. Four of the States could have remained outside the Union; that is, they could have “seceded” preemptively. I therefore draw the following inference: If a State has the right to decline membership in the Union, it must have the right to withdraw from membership in the Union, inasmuch as the Constitution nowhere proclaims membership to be perpetual.

My inference, unlike Sandefur’s, finds support in the Constitution. I begin with the Tenth Amendment (ratified only three years after the original Constitution), which says:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The original Constitution contemplates that the government of the United States might have to suppress insurrections and rebellions (see Article I, Section 8), but it nowhere addresses secession. Secession, in and of itself, is not an act of insurrection or rebellion, both of which imply the use of force. Force is not a requirement of secession, which can be accomplished peacefully.

Therefore, given that the Constitution does not require a subscribing State to pledge perpetual membership in the Union, and given that the Constitution does not delegate to the central government a power to suppress secession, the question of secession is one for each State, or the people thereof, to determine, in accordance with the Tenth Amendment. The grounds for secession could be, as stated above, the abridgment by the United States of the “rights, privileges and immunities”of its citizens.

What about Texas v. White (U.S. Supreme Court, 1868), in which a 5-3 majority anticipated Sandefur’s arguments for a mystical bond of Union; for example:

When…Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. 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.

Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union.

It would have been bad — bad for slaves, bad for the defense of a diminished Union — had the South prevailed in its effort to withdraw from the Union. But the failure of the South’s effort, in the end, was owed to the superior armed forces of the United States, not to the intentions of the Framers of the Constitution.

In any event, the real jurisprudential issue in Texas v. White was not the constitutionality of secession; it was the right of the post-Civil War government of Texas to recover bonds sold by the secessionist government of Texas. Moreover, as Justice Grier noted in his dissent,

Whether [Texas is] a State de facto or de jure, she is estopped from denying her identity in disputes with her own citizens. If they have not fulfilled their contract, she can have her legal remedy for the breach of it in her own courts.

The majority’s ruling about the constitutionality of secession can be read as obiter dictum and, therefore, not precedential.

Perhaps the good people of Texas, if sufficiently riled, will give the Court something more substantial to chew on.

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