Secession Redux

In “Secession,” I wrote:

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 … 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 … 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.

Clifford P. Thies makes a similar case in “Secession Is in Our Future“:

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.

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 [S]tate could ever secede from the Union. But, on careful reading, the relationship between Texas and the other [S]tates of the Union is merely “as indissoluble as the union between the original States.” In other words, Texas, having been a nonoriginal [S]tate, has no greater right of secession than do the original [S]tates. As to how [S]tates might secede, the second sentence says, “through revolution or through consent of the States.”

As to why a [S]tate might secede, … Chief Justice Chase presciently discusses the … 10th Amendment[] to the US Constitution, which reserve[s] to the [S]tates 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 [S]tates 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.

In other words, the federal government abrogates the Constitution when it fails to honor Amendment X:

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.

Thies puts it starkly:

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 [S]tates” of which the Court speaks is already dissolved.

I would put it this way: The legal basis for the perpetuation of the United States disappears when the federal government abrogates the Constitution. Given that the federal government has long failed to honor Amendment X, there is a prima facie case that the United States no longer exists as a legal entity. Secession then becomes more than an option for the States: It becomes their duty, both as sovereign entities and as guardians of their citizens’ sovereignty.

See “The Constitution: Myths and Realities“.