Is Secession Legal?

[Henry]

Is Secession Legal? | The American Conservative

A good read I came across this afternoon.

A little long, but definitely worth the read for those beyond clips and bytes.


(BTW, the only pledge of allegiance I can recall reciting is the one recited by Jefferson. Interestingly it got a mention in the article.)

 

[GodFearinGunTotin]

I don't think the pledge of allegiance is a binding, legal document.

Tagging to read the rest later.

 

[Birds Away]

I don't think the pledge of allegiance is a binding, legal document.

Tagging to read the rest later.

Yes, because a person's word or oath means nothing in this country.

 

[ziggy]

Secession is not "legal" because it is a challenge to the legality of our nationhood. The American Revolution was not "legal" either. At this level of challenge to authority, might makes right. We won the Revolution so we became a new nation. "Legality" had nothing to do with it nor does it really have anything to do with states seceeding from America.

 

[Henry]

Yes, because a person's word or oath means nothing in this country.

Indeed, as evidenced by how carelessly either is given.

 

[Henry]

Secession is not "legal" because it is a challenge to the legality of our nationhood. The American Revolution was not "legal" either. At this level of challenge to authority, might makes right. We won the Revolution so we became a new nation. "Legality" had nothing to do with it nor does it really have anything to do with states seceeding from America.

As noted in the subtitle to the article, America is no "one nation indivisible".

 

[T.Lex]

It was pretty much settled about 1865 that the states couldn't secede.

The nation would have to revisit the issue in basically the same way to change the collective mind.

IMHO.

 

[Henry]

It was pretty much settled about 1865 that the states couldn't secede.

The nation would have to revisit the issue in basically the same way to change the collective mind.

IMHO.

Did you read the entire article?

 

[John Galt]

If a state can "join" the Union, could they not "unjoin"? Not trying to be argumentative, just asking a simple question.

 

[Henry]

Common sense would say yes.



(Divorce judges seem to recognize union by consent and sovereignty of the parties to the agreement)

 

[T.Lex]

Did you read the entire article?

Yes.

The author acknowledges the resolution of the Civil War, then glosses over its import. And mixes in a few logical fallacies along the way.

More on this after...

If a state can "join" the Union, could they not "unjoin"? Not trying to be argumentative, just asking a simple question.

There is no mechanism in the Constitution for secession. It just isn't addressed. The Confederacy, in part, was an effort to resolve that silence by seceding. The Union chose to challenge that decision with arms, and won. So, it got to set the rules. The new rule: no secession at all.

Now, going back to the article, the author (correctly I think) sets out this basic assessment by Justice Scalia. But, the author then changes the question.

The Union, then, 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.

Waitacottonpickingsecond. (Pardon the pun.)

Are we talking legally or philosophically? There is a difference. Philosophically - sure. Any state can secede by saying they secede and defending their borders like a real country. Look at Eastern Ukraine. Or Israel. Or the new Islamic Caliphate. Or the soon-to-be Kurdistan. The fall of the Soviet Union was sorta like watching dominoes of secession in slow motion. Velvet Revolutions all the way around, bay-bee.

Legally, though, the consensus is that there's no way to do it.

By the way, Scalia's pledge of allegiance bit is absurd to the point where I think he meant it to be funny. He's a quirky dude.

Common sense would say yes.

(Divorce judges seem to recognize union by consent and sovereignty of the parties to the agreement)

In the US, I believe every jurisdiction has a legal framework that allows for divorce.

There is no framework for the secession of a state.

Interestingly, I think California does allow for a sort of county-level secession. As I recall, they have a process whereby people can split off from their county and start a new one. It isn't easy, but it can be done.

 

[Mr Evilwrench]

I pledge allegiance to the flag (and it's a pretty one) and what it stands for, which is the Constitution. If the .gov violates the Constitution, which is the contract between the .gov and the citizens (not subjects), I feel no obligation to continue honoring that pledge. All bets are off. Same with the states. There may not be a formal "legal" way for the states to secede, but to say they can't in any case do it, is tyranny.

 

[Liberty Sanders]

There is nothing in the Constitution that prohibits secession. States that joined the Union voluntarily may leave it the same way.

Secession is perfectly legal.

 

[T.Lex]

I have a hard time with the assertion that secession is "legal" if it is also "legal" for the feds to prevent secession by the force of arms. There is actually a Supreme Court case on this:
Texas v. White - Wikipedia, the free encyclopedia

So, anyone who asserts secession is "legal" must necessarily reject the Supreme Court's authority to decide the issue AND the federal executive's authority to militarily prevent secession.

Now, conceptually, I will concede that if a state wanted to secede and the federal government was willing to allow it, then the secession would be "legal." In a sense, that would be secession by mutual agreement.

Unilateral secession, by history and legal precedent, is not legal.

 

[HoughMade]

There is nothing in the Constitution that prohibits secession. States that joined the Union voluntarily may leave it the same way.

Secession is perfectly legal.

States did not become part of the union by a vote of their own legislatures alone. If states can leave the same way they join the union (which the Constitution does not say, but to indulge you) then they can only leave with the permission of Congress.

 

[JTScribe]

I actually did a term paper in college on this topic. Cut and paste:

But was secession a legitimate means for the South to address their perceived grievances with the North?

There are many interpretations which indeed support that very right. Jefferson Davis, president of the Confederate States, “argued that the legal basis for secession could be found in the Tenth Amendment to the Constitution. That amendment had said that any power not delegated to the federal government by the states, and not prohibited the states by the Constitution, remained a right of the states or the people” (Woods, 2004, p. 62).

Admittedly, Davis had a strong bias toward the right of the south to secede. But he was far from alone in his opinion.

Thomas Jefferson, President and author of the Declaration of Independence, once said to James Madison, that they were “determined, were we to be disappointed in this, to sever ourselves from the union we so much value rather than give up the rights of self-government” (McCullough, 2001, p. 521). Jefferson in his letter was referring to the Kentucky Resolutions. A “response to the Alien and Sedition acts, Jefferson’s Kentucky Resolutions declared that each state had a ‘natural right’ to nullify federal actions it deemed unconstitutional. The states were thus to be the arbiters of federal authority” (McCullough, 2001, p. 521).

This was well-reflected during ratification of the Constitution in that several states – Maryland, Rhode Island, and eventual Confederate state Virginia – reserved the right to withdraw from the Union as “individual parties to a federal compact” (Gutzman, 2007, p. 122).

Further solidifying the South’s position, President Abraham Lincoln himself said in 1848, “Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits him. This is a most valuable, a most sacred right – a right which we hope and believe is to liberate the world. Nor is this right confined to cases in which the whole people of an existing government, may choose to exercise it. Any portion of such people that can, may revolutionize, and make their own, of so much territory as they inhabit.” This apparently did not extend to states who would eventually be subjects of Lincoln’s Presidency. It can perhaps be assumed that in 1848 Lincoln had no inkling that he would hold executive office during such a time of ‘uprising.’


(Got an A, BTW)

 

[Classic]

You can join but you can never leave. Sounds like the kind of principle that gangs go by.

 

[rambone]

To govern lands by force when they have withdrawn consent is tyranny. It is how an empire behaves.

 

[T.Lex]

It is probably important to clarify meanings.

Secession is when a subordinate gov't entity peacefully exits the larger entity and starts its own.

Revolution is when a subordinate gov't entity violently exits the larger entity and starts its own.

In this quote:

President Abraham Lincoln himself said in 1848, “Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits him. This is a most valuable, a most sacred right – a right which we hope and believe is to liberate the world. Nor is this right confined to cases in which the whole people of an existing government, may choose to exercise it. Any portion of such people that can, may revolutionize, and make their own, of so much territory as they inhabit.”

Lincoln was specifically NOT talking about secession. Rather, the subject was revolution.

So, the OT was secession.

If we want to talk about the legality of revolution, that's much easier. If a group revolts and wins, it was legal. If they lose, it was illegal.

Even today, certain things are just that simple. And totally outcome based.

To govern lands by force when they have withdrawn consent is tyranny. It is how an empire behaves.

I think there are other, more important, indicia of a tyranny. For the purposes of this thread, how do you measure consent? Only those that want to secede, or the entire population?

 

[JTScribe]

It is probably important to clarify meanings.

Secession is when a subordinate gov't entity peacefully exits the larger entity and starts its own.

Revolution is when a subordinate gov't entity violently exits the larger entity and starts its own.

In this quote:

Lincoln was specifically NOT talking about secession. Rather, the subject was revolution.

So, the OT was secession.

If we want to talk about the legality of revolution, that's much easier. If a group revolts and wins, it was legal. If they lose, it was illegal.

Even today, certain things are just that simple. And totally outcome based.



I think there are other, more important, indicia of a tyranny. For the purposes of this thread, how do you measure consent? Only those that want to secede, or the entire population?

Admittedly true, I did find it to be a bit hypocritical on Lincoln's part, however. Presumably revolution is the followup to secession - I'm sure the colonies would have peacefully seceded from the British Empire had they been allowed to do so.

By definition though the "Civil" War was more of a revolution than a civil war, which is defined as "a conflict in which two or more factions fight for control of a nation’s government." The South, rightly or wrongly, didn't seek to control the North, they just wanted to go their own way.