For readers interested in the normative arguments for and against a right to secession, I recommend Allen Buchanan's 1991 book Secession: the Morality of Political Divorce, and Christopher Wellman's more recent A Theory of Secession. Unlike me, Buchanan advocates a presumption in favor of maintaining existing states, though a more limited one than under current international law. Wellman, by contrast, defends the view that any group should have the right to secede so long as it meets certain minimal criteria. He contends that a broad right of secession is a logical implication of the right to political self-determination. Both books are outstanding, and well worth your time if you are interested in these issues.
And if you are a Penn or George Mason student, you may be interested to know that I have a unit on the pros and cons of secession in my seminar on Federalism (scroll down for description). I didn't expect the issue to be quite as topical as it has become over the last few days as a result of the tragic events in Georgia.
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Federal government most likely would view secession today in terms of a threat to its revenue which it depends to fund its ever growing centralized powers through both blind political aspirations and juridical fiat.
Both Buchanan and Wellman's books are good. Buchanan updates his view to some degree (partly in response to Wellman) in part three of his excellent recent book _Justice, Legitimacy, and Self-Determination_.
It is also important, I think, to insist that states (like people) should not be allowed to profit from their own wrong-doing. This is clearly the case in the Russia/Georgia/S. Ossetia case. You'll hear how Russia is "defending its citizens", but that's only because they gave passports to S. Osstians who were otherwise not Russian citizens. Would it be reasonable for the US to give US passports to rich Mexicans and then use this as an excuse to invade Mexico? No. Same thing here. And, you'll here that the majority of the population of S. Ossetia wants to join Russia or be independent, but that's only because the formerly larger Georgian population was driven out during the first war (mostly by "irregular" Russian troops.) So, a double case of a country seeking to profit from its own wrong-doing.
To some degree the second issue applies to Kosovo, too, since the Kosovars, w/ the tacit, if not active, support of NATO, drove many, many Serbs out of Kosovo after the bombing stopped. That was one of several reasons I am less that happy with that situation.
I haven't read the earlier thread, but has anyone mentioned the ruling by the Supreme Court of Canada In Re Secession of Quebec yet? As far as I'm concerned, that is hands down the best treatment of the topic in any kind of legally binding document.
@Dearieme: There are a number of Constitutional provisions that could be read to imply that secession is unconstitutional, none of them decisive, but still:
- Art I (8): One of the purposes for which the militia may be used, is to "suppress Insurrections".
- Art I (9): One of the cases when the writ of habeas corpus may be suspended is in cases of rebellion.
- Art I (10): "No State shall enter into any Treaty, Alliance, or Confederation".
- Art III (3): The definition of Treason: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."
- Art VI (2): If one or more states were to secede, the Constitution would no longer be the "supreme law of the land" in those states.
- A.14 (3): "No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."
- A.14 (4): "The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void."
(Note that neither of these two is specifically limited to the civil war.)
I would argue that even if the Constitution does not speak decisively on the issue of a right to secede, at the very least it grants the federal government the power to wage war to resist such a secession.
Wikipedia lists a population of 66.2% Ossetian as of 1989 in South Ossetia, and 81.6% Albanians in Kosovo as of 1989 (from the Serbian government's figures). Neither one has benefitted from ethnic cleansing to the point of creating a majority where there previously wasn't one.
I take it that it's generally agreed that, however nasty their motives, the Southern States had every constitutional right to secede from the USA?
Didn't we already do this?
Recently?
"Generally agreed"? Not by Lincoln or Grant. So I'd have to say "no."
I would argue that the rebellion language in the Constitution is context-dependent, said context being the likelihood of England or another overseas power supporting native insurrections for their own purposes. I'm open to being shown where the Constitution anticipates a state seceeding and preemptively forbids it, but the articles you cite don't even come close to that.
What I'd like to be shown is where the procedure for secession is codified. You don't need a constitutional or statutory procedure to exercise the by-definition extralegal right of revolution, but if the claim is that the Constitution contemplates lawful secession, there must be a recognized procedure for seceeeding. Where is it?
Given the Ninth amendment, the relevant question isn't, "Does the Constitution say states can secede?", it's, "Does the Constitution say states can't secede?"
And it doesn't. So they can.
Obviously there's no procedure, any more than there's a procedure laid out holding elections. The right, however, might be implied in the long-forgotten Tenth Amendment, which states "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."
So unless the Constitution prohibits secession, the states retain the right to leave the union.
Beyond that, everyone knows the question of the legality of secession is bound up in the issues of southern racism and slavery. If California voted to secede next year because, say, John McCain was elected president, a lot of people would magically change their view.
I've never been particularly impressed by arguments of the form, "We beat the last guy who argued your position to death, therefore you're wrong."
Oh, thanks Stacy; 10th, not 9th. I forgot which inkblot I was referring to. ;)
@Stacy: I never said that Constitution "preemptively forbids" secession. I merely pointed to some language that suggests, I repeat, suggests, that the founding fathers intended for the Constitution to be as perpetual as the Articles of Confederation explicitly said they were.
@Brett Bellmore: The point of mentioning Lincoln and Grant was presumably not to argue to the correctness of their position, but rather to refute the statement that the right to secession was "generally agreed".
Otherwise, I would suggest that part of the problem is the difference between the legal answer to such a question, and the political philosophical one. Given the purpose of the second amendment, I would say that the founding fathers supported the possibility of insurrection as a last resort against oppression. But such an insurrection is almost by definition in violation of the law, and understandably so. One would not expect the constitution to make an arrangement for the time when it may have evolved (been amended) to the point of tyrrany, since such an arrangement would be futile. An insurrection against an oppressive government is an inalienable right of individuals and states, regardless of what the constitution says. The more interesting question is what the founding fathers would say of a secession without any kind of legitimate grievance against the federal government.
Yes. Thanks for clarifying the point that I made. I think it was rather clear from the way I wrote '"Generally agreed"? ' that it was this phrase I couldn't agree with.
There's actually a fair amount in the Constitution about holding elections, as well as recognition of the need for more detailed rules, and the specification of a locus of authority for making those more detailed rules. As a result, we actually know the answer to the question "how are elections lawfully held?" We don't know the answer to the question "how does a state lawfully seceede?" and don't even have a clue about where to look for the answer. That suggests something to me about the question.
In Texas v. White, the Supreme Court held there was no right to secede.
The Consitution DOES account for elections. Art. I, Sec. 4 reads "The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators."
Congress has the power to "To borrow money on the credit of the United States." What does that mean? "The United States" means something a little different today than back then. Back then it meant something like "a collection of States" (the United States are...). Today the "United States" is its own thing (the United States is...).
So back then Congress was borrowing on the collective credit of the States united. Today Congress borrows on the credit of Uncle Sam.
The verb tense has to do with the difference between American and English. In England even today, for example, if you refer to Chelsea soccer club, you say "Chelsea are..." In the US, you'd, of course, say "Chelsea is..." The references in colonial times weren't making a political point, they were just speaking, well, English.
Today if South Carolina (or given recent claims, Montana?) wanted to leave the Union, their weapon of choice would be lawyers and legislators instead of cannons aimed at the nearest convenient Federal installation. At minimum, secession on consent is clearly achievable under Article V -- If you can get the Constitutional Amendment enacted, you can go bye-bye. Otherwise, if one assumes Texas v. White is still good law, it appears that you can check out any time you like, but you can never leave.
[Nuts... shouldn't have typed that last phrase. Now I have Hotel California stuck in my head]
That said, I usually consider succession a bad idea and in this case a particularly horrible idea.
To me, the defining characteristics of a nation is its ability to defend its borders and people from outside forces. Obvisiously, this region has proven its inability to protect its own people and therefore fails even the most basic test of nationhood.
We are talking a small region, about the size of Rhode Island, with a population of about 70,000. They would barely have the population to support a strong police force, much less a military of any kind.
True, Georgia doesn't have a powerful military, but it was easily able to overpower what little military force this region was able to muster.
I hear people argue all the time that might doesn't make right and other similar statements. That may be true if everyone involved in the discussion believes that same thing. If only one party in the dispute believes that all disputes should be solved without violence, they will lose the first time they run into someone willing to use violence.
Russia is a nation with a long history of solving their problems with violence. They have never shown any inclination to behave in a different way. They treat countries with similar military capabilities with respect, but show the contempt of a bully for a weakling to anyone weaker.
This conflict was inevitable.
I don't think that's a procedure. The Constitution does give a procedure for e.g. amending the Constitution. The above clause could cover states and/or Congress holding elections by any means from drawing straws to electronic brain implants that choose your vote based on the dominant side of your brain. All it says is that Congress and/or state legislature will make the rules. The equivalent for secession would be "Congress shall have the authority to regulate the withdrawal of any state from the union." Since the founders generally avoided tautologies, I'm not surprised they left that one out.
More broadly, I find it strange that some folks seem to be approaching the Constitution as a list of things you're positively allowed to do, i.e. if it doesn't say you can, then you can't. In any other context most agree that it's a negative list of limits on governmental authority. Again, I put this down to most people thinking of secession as part and parcel with the Confederate cause. And it's not. It's a completely separate debate.
That ain't chopped liver.
The equivalent for secession would be "Congress shall have the authority to regulate the withdrawal of any state from the union."
Well -- yes. Seems like the sort of thing you'd pretty much have to put in if you contemplated lawful secession, but didn't want to put a specific method into the Constitution.
Again, the Constitution is the Supreme Law of the Land -- and can only be changed by a supermajority of states. That by definition forbids any state from unilaterally rejecting it.
Yes.
I don't think James Bond ever said that.
The Southern States had chosen NOT to assert their independence by force of arms, but by legal procedures?
Let us suppose that after the Southern States had passed their Ordinances of Secession, someone had challenged them in a Federal court as being unconstitutional. How would the courts have resolved the matter? Given the composition of the Supreme Court at the time, what would have been the ultimate outcome? And could the South have used a favorable ruling to compel the Federal Government to allow them to leave peacefully?
And is such still a viable option today?
I watch a LOT of soccer with English announcers. Even after years of hearing it, I find it sounds "off".
What's often missed, when discussing this issue, is how few states actually had seceded, prior to the start of the war. Nine had seceded - Virginia, North Carolina, Tennessee, and Arkansas had not. Most of the Confederacy's wealth, industry, and a disproportionate share of its population was in Virginia. South Carolina intentionally instigated hostilities because they knew that Virginia would not secede unless it came to war, and they believed that a Confederacy that lacked Virginia would not be viable.
Yes it is. Treason doesn't depend upon consent. *Leaving* the country is not treason. *Taking part of it with you* when you go? Treason.