A Proposal to Officially Legalize the Secession of States from the Union

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.

 

 

INTRODUCTION:

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.

 

ARGUMENTS:

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 themselvesin 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.

 

CONCLUSION:

 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?

 

SOURCES USED:

 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/>.

13 thoughts on “A Proposal to Officially Legalize the Secession of States from the Union

  1. Hi Lil G,
    Some nice arguments you got there! You would’ve made a mighty fine lawyer if you had been alive during the Civil War era. And interesting point you brought up there, about the paradox…hmm

    • Dear Disgusted,

      First off, I apologize for the late reply. Apparently this comment was filtered into the Spam folder (can’t imagine why), so I didn’t actually see it until now.

      Oh, and thank you so much for being the only person in the galaxy, other than me, who has actually read this article. Even my parents nodded off at the third line. That being said, I believe you, uh, forgot to actually include a list of your arguments against my piece. Maybe in your next comment?

      As for being a hacker – well, that depends on what, exactly, I’m hacking. For example, I’m terrible at hacking vegetables. I once tried to slice a potato… my mom didn’t let me near the kitchen for a month after that incident.

      Hacking out code, however, is a different matter. I’m actually fairly decent at doing that; although I could still use some instruction. Since you seem to know about good hacking, it would be great if you could send me some tips!

      Sincerely,
      Aditi Ramaswamy – the History Hacker

  2. Great article and I love your presentation of the views. It is an interesting question to ultimately ask and I assume has much to do with the public law of civilized nations as it does with the motives behind the people in positions of power? Thanks Aditi, as this was a joy to read over and ponder!

    • Dear Tamara Rajaram,

      Thanks for commenting! I’m glad you enjoyed reading my brainchild :) Oh yes… if something being illegal benefits those up top, then rest assured it’ll probably STAY illegal 😛

      Sincerely,
      Aditi Ramaswamy – The History Hacker

  3. The main argument against secession being legalized is that the entire nation spends billions of dollars on the infrastructure, benefits etc. for individual states. Although secession may appear romantic, in reality it is just something that anti-big government, mostly Southern states wish to maintain. In reality the taxes of large states such as California, New York etc. which are currently being given to less populated states in the forms of benefits etc. are not at all justified when secession is legal. If states are allowed to secede who owns the federal highways in the state? The fact that secession should be illegal is obvious. Also, you misused Amendment X just because the nation doesn’t hold the right to explicitly kill civilians for no reason doesn’t mean the states do.

    • Dear Anti-Secessionist,

      Thank you so much for replying! I always like hearing from opposing viewpoints :)

      Now, in response to your arguments:

      1) “The main argument against secession being legalized is that the entire nation spends billions of dollars on the infrastructure, benefits etc. for individual states.”

      Of course, I don’t deny that the federal government spends money on the states, and that it would lose some cash if a state seceded. In fact, I’m not arguing that states SHOULD secede. I personally don’t believe that it’s a very good idea. I’m just pointing out that Texas v. White, the Supreme Court case, was unconstitutional, and that secession is technically legal. Again, I don’t advocate it.
      But here’s some consolation: if a state does secede, the USA no longer has to pay for anything for that state. No roads, no school systems… nothin’. All of that is now the former-state-new-country’s responsibility. So while the state was a part of our country, the federal government might have helped it – but now it’s on its own, and the federal government has one less mouth to feed (well, more like a few million mouths less, but you get the point). And if it’s a Southern state… well, you yourself said that they’re anti-big-government and depend too much on welfare. Guess getting rid of some of those “deadbeat” states might not be a bad idea, right?
      Right? :)

      2) “Although secession may appear romantic, in reality it is just something that anti-big government, mostly Southern states wish to maintain.”

      Uh… actually, according to the 2012 secession petition signature counts, ARIZONA topped the list. Arkansas was second, Colorado third, Indiana fourth, and Missouri fifth. Out of those states, only one – Arkansas – is Southern.
      Also, this piece has nothing to do with romanticism. It was not inspired by Margaret Mitchell. It was inspired by reading the Constitution and realizing that there’s something fishy about Texas v. White.

      3) “In reality the taxes of large states such as California, New York etc. which are currently being given to less populated states in the forms of benefits etc. are not at all justified when secession is legal.”

      California and New York are giving away taxes? Let’s look at some figures. Namely, the percent of state income that comes from federal moolah:

      1. NEW YORK, 3rd most populous state: 40.4%, making it #10 in the nation for Most Federal Money Received
      2. VIRGINIA: 26.8%, making it #47
      3. RHODE ISLAND: 38.3%, making it #17
      4. TEXAS, 2nd most populous state: 40%, making it #11

      Given the fact that Texas (a Southern state) is more populous than New York *and* ranks slightly lower on the Federal Aid List, it would seem that the Lone Star state is actually contributing a few pennies to New York, and not the other way around. That’s my guess, at least. Now let’s take a look at the facts:
      TEXAS has a federal-benefit ratio of 91 cents to a dollar. NEW YORK’s is a dollar to a dollar. New York, which you claim is paying for Southern states, appears to be getting a benefit of nine cents from Texas. It ain’t much, but it’s still money. And when one dollar becomes billions of dollars… well. That’s a lot more than nine cents we’re looking at here.

      4) “If states are allowed to secede who owns the federal highways in the state?”

      Good question. In fact, a similar one arose about 152 years ago, when South Carolina seceded and claimed Fort Sumter – a Federal fort. Did SC have the right to do that? How much did it contribute to Fort Sumter, and how much did the federal government contribute?
      It’s nigh impossible to calculate THAT figure… but it is possible to figure out how much states pay for their highways today. According to the Federal Highway Administration, “Each State is guaranteed that at least 92% of its highway user percentage attributions to the Highway Account of the Highway Trust Fund will be returned to the State.”
      In other words… the states are mostly paying for their OWN highways. Not bad, hm? :)

      5) ” The fact that secession should be illegal is obvious.”

      That is your opinion. An admirable opinion, yes – but an opinion all the same. The facts, taken straight from our beloved Constitution, say otherwise.

      6) “Also, you misused Amendment X just because the nation doesn’t hold the right to explicitly kill civilians for no reason doesn’t mean the states do.”

      Now I’m just plumb confused about this one. The exact wording of Amendment X is: “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.”
      My argument about Amendment X was that since the Constitution doesn’t explicitly allow the federal government to remove states from the Union, states can use the power of Amendment X – the idea of giving states powers not delegated to the Union – to remove themselves from the Union.
      Yeah, uh… nothin’ about killing off civilians in there. 😛

      Once again, thanks for writing! Your comment really made me research, and I ended up learning quite a bit of new information 😀

      Sincerely,
      Aditi Ramaswamy – The History Hacker

      SOURCES:

      1) http://en.wikipedia.org/wiki/2012_state_petitions_for_secession
      2) http://townhall.com/columnists/taddehaven/2013/06/25/how-much-does-your-state-government-depend-on-federal-funds-n1626882
      3) http://en.wikipedia.org/wiki/List_of_U.S._states_and_territories_by_population
      4) http://www.ritholtz.com/blog/2012/02/is-your-state-a-net-giver-or-taker-of-federal-taxes/
      5) http://www.fhwa.dot.gov/policyinformation/attrib.cfm
      6) U.S. Constitution. Amendment 10.

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