That’s right. I did it. I wrote this. (But, uh, to you nice folks from the CIA out there, I’d just like to say that I am not plotting anything. Really. Please believe me.)
So the question arises: why did I do this? Well, after months of reading up extensively on the Civil War, and after perusing my pocket copy of the Declaration of Independence/the Constitution, I suddenly realized that secession isn’t quite as illegal as the North made it out to be during Reconstruction.
In fact… it’s legal.
What follows is a short proposal I drafted, which lists out the reasons for my conclusion. Enjoy.
Ever since the American Civil War (1861-1865), the idea of States seceding from the Union has been called into question – and, in Texas v. White, declared unconstitutional. However, as proved by the arguments below, the secession of States is not, and never was, unconstitutional. The purpose of this piece is to overturn the ruling that secession is unconstitutional, and officially make it legal.
NOTE: We will hereby adhere to a strict interpretation of the Constitution, so that we may better understand and support the arguments presented below, as well as refrain from making unconstitutional decisions.
I. Why Secession is Already Constitutional
a.) The Preamble to the Constitution of the United States of America states that our country aims for a “more perfect Union.” This does not entail a larger union, especially if this larger union is fraught with internal strife. A perfect union implies a union in which all associated States share similar ideals and interests. If a State wants to secede from our union on the basis of differing ideals, our union is clearly not perfect. Letting that State secede is indeed a step toward perfection. The Preamble also mentions a wish to “insure domestic tranquility.” A union wherein each State has vastly differing ideals, and is often driven to violence with other States due to those ideals, would be in direct conflict with this line in the Constitution.
b.) Amendment X states that: “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.” Since the federal government does not have the express right to remove states from the union, it can naturally be assumed that this power has been transferred to the States, and therefore it is the States who have the power to remove themselves from the union. And since the people of that State are the ones proposing secession, Amendment X can be reapplied in this situation as well, as it delegates these rights to both the States and their people.
c.) I conclude with a short statement regarding the part of the Constitution that states that Congress holds sovereignty over certain territories. Section III of Article IV states that “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.” While some may take this to mean that the federal government has the power to regulate each State, and therefore prevent them from leaving the Union, the latter part of this quote disproves this idea. When the quote talks of ‘any particular State,’ it is automatically isolating the States from the aforementioned ‘Territory or other Property.’ Therefore, it can be assumed that this ‘Territory’ refers to areas that have applied for statehood but have not actually become States – thus ruling out this particular section as proof of the unconstitutionality of secession.
MORE ON TEXAS v. WHITE:
Texas v. White was an 1869 Supreme Court case that, originally, had to do with the recovery of some bonds that the federal government had paid to Texas in 1850. When Texas seceded, the Confederacy used these bonds to buy materiel during the Civil War. In 1869, the current government of Texas – Unionist men who had been placed in charge during Reconstruction – filed a lawsuit in order to regain these bonds from the private citizens who held them.
These citizens, naturally, did not want to part with the money, and claimed that since they had been paid after Texas seceded from the United States, Texas could not use federal laws to reclaim the money.
Texas’ Reconstruction government, however, had other ideas. Secession, according to them, was impossible: “The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to “be perpetual.” And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained “to form a more perfect Union.” It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?”
Of course, Texas won the case – and its money. And as a result of Texas v. White, secession from the Union was declared unconstitutional.
However, the arguments Texas used to win are fatally flawed. The original thirteen colonies were vastly different in every way – the religions and ethnic backgrounds of their inhabitants, their economies, their population sizes. Only just before the Revolutionary War did they temporarily set aside their differences and band together to fight the British. Almost immediately afterward, the newly formed States began squabbling again. Compromises, such as a bicameral legislature – which incorporated both the Virginia and New Jersey plans – and the Three-Fifths Compromise- which sought to appease the South on the slavery issue – abounded. The early nineteenth century only brought more compromises; desperate efforts to hold the already shaky Union together, such as the Missouri Compromise and Compromise of 1850. In the end, none of these could work – the differences between the states were too great to be bridged with a few hasty compromises. Secession by itself might have worked to solve this problem, and ensure peace in America: instead, it was declared illegal and the Civil War was fought, causing the – completely unnecessary – deaths of over six hundred thousand men.
Texas v. White also cites the Articles of Confederation as a document that strengthened the ties between states, and invested power in the country as a whole. However, the Articles of Confederation themselves seem to have a different view. It created a Confederacy, wherein the federal government was weak and the States were free to pursue their own, mostly unregulated courses of action. “Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled,” Section II of the Articles – the section on states’ rights – declares. Since nowhere in the Articles does it state that the United States had the power to expel States from the Union, it may be understood that States have the power to expel themselves – in other words, the right to secession.
The final argument Texas v. White makes in order to prove the idea that secession is unconstitutional relates to the Preamble of the Constitution – namely, the phrase “more perfect Union.” Texas v. White claims that “it is difficult to convey the idea of indissoluble unity more clearly than by these words.” However, Texas v. White does not even bother to explain how, exactly, “more perfect Union” means “indissoluble Union.” This implies that perfection is not about how peaceful or prosperous a country is, but how large it is. Therefore, a large conglomeration of States, characterized by frequent violence, rioting and disagreement between States, is, according to Texas v. White, a perfect Union.
I conclude by repeating that Texas v. White took place in 1869, barely four years after the Civil War ended, and many Northerners were still sore about the South’s secession. It is quite possible that secession was declared illegal precisely because of this. An interesting paradox can be found here, during Reconstruction – the Southern states that had seceded were not readmitted back into the Union until they had ratified the 13th Amendment; and yet the North was vehement in declaring that the South had never properly seceded. This raises the question: how can a State that has not seceded be readmitted to the Union?
1. U.S. Constitution. Preamble
2. U.S. Constitution. Amend. 10.
3. U.S. Constitution. Article IV. Section III.
4. Texas v. White – Supreme Court Case.
5. U.S. Articles of Confederation
6. “Texas v. White”. Encyclopædia Britannica. Encyclopædia Britannica Online. Encyclopædia Britannica Inc., 2013. Web. 11 Aug. 2013 <http://www.britannica.com/EBchecked/topic/589367/Texas-v-White>.
7. Woods, Thomas. “State Nullification: What Is It?” Tom Woods’s LibertyClassroom. LibertyClassroom, 2013. Web. 11 Aug. 2013. <http://www.libertyclassroom.com/ nullification/>.