Secession is much in the air. I have said much about it during the past four years. (See this post and the posts listed at the bottom of it.) I will have more to say about the separation of liberty-loving States from the United States. However, I will not counsel secession, which probably is fruitless even though it is legal, Justice Scalia’s dictum to the contrary notwithstanding.
Instead, a future post will propose a treaty of division. I will make the case that secession is legal, offer (in detail) a treaty of division as a beneficial alternative to secession, address practical and ideological objections to division, and discuss its advantages to all parties.
Left-wing opponents of division are likely to charge that the New Republic, as I like to think of it, would be inimical to the rights that Americans now enjoy under the Constitution, as amended and interpreted. I would answer that charge by offering the following new constitution, which would more than adequately safeguards the liberty rights of all who live under it. The most cynical (i.e., left-wing) opponents of division will not acknowledge the sincerity of a commitment to liberty, of course, but nothing will sway them, in any case. The new constitution, along with my proposal, will be aimed at persons of good will who are prepared to act in good faith for the good of all Americans.
The main problem with the Constitution of the United States is not its meaning; it is the fact that inappropriate meanings have been imputed to it because it is too often vague and ambiguous. The following Constitution for the New Republic of America is not only far more specific than the present Constitution of the United States — and more restrictive of the powers of government — but it also includes more checks on those powers. For example, there are these provisions in Article V:
Congress may, by a majority of three-fifths of the members of each House present, when there is a quorum consisting of three-fourths of the number of persons then holding office in each House…. provide for the collection of revenues in order to pay the debts and expenses of the New Republic…. [emphasis added]
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A judgment of any court of the New Republic may be revised or revoked by an act of Congress, provided that such any revision or revocation is approved by two-thirds of the members of each house and leads to a result that conforms to this Constitution.
Then there are Articles VII and VIII, Keeper of the Constitution and Conventions of the States, which open thusly:
The responsibility for ensuring that the legislative, executive, and judicial branches adhere to this constitution in the exercise of their respective powers shall be vested in a Keeper of the Constitution. The Keeper may review acts of Congress, the executive branch, and judicial branch that have the effect of making law and appropriating monies.
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Delegations of the States shall convene every four years for the purpose of considering revisions to and revocations of acts of the government that is established by this constitution. Such conventions (hereinafter “convention of the States”) may revise and/or revoke any act or acts and/or any holding or holdings, in the sole discretion of a majority of State delegations present and voting.
On top of that, there is Article IX, which authorizes petitions and subsequent elections for the revocation of a broad range of governmental acts and the expulsion of members of Congress, the President, Vice President and justices of the Supreme Court. Also, a constitutional convention may be called pursuant to a successful petition.
To the extent that Articles VII, VIII, and IX would inhibit presidential and congressional ventures into unconstitutional territory, so much the better.
This new Constitution also provides for secession, the threat of which might further help to preserve its original meaning.
The new Constitution is below the fold. (more…)