Secession

There’s more posturing about secession these days, and a reader asked me a question about this. So I thought I’d provide a few answers to some questions that seem to be being discussed:

1. Is It a Good Idea for Some States to Secede from the U.S.? As I mentioned before, no. To begin with, let me stress that I think that modern talk of secession is both foolish and pretty obviously empty posturing, whether it’s some liberals talking that way during the Bush Administration or some conservatives talking that way during the Obama Administration. America has profited tremendously from American union, both in terms of wealth and in terms of liberty from threats both foreign and domestic. It has profited tremendously in terms of national greatness, for those who care about such things, as I sense many conservatives and some liberals do. And its unity has greatly helped the world, especially but not only during World War II and the Cold War.

I doubt that even a fraction of those who on occasion talk in favor of secession are really willing to abandon the benefits of union. I’m confident that they should not, under current circumstances or circumstances remotely like our current ones. In principle, I agree that some sufficiently grave threats to liberty or security may justify secession — if we’re talking about historical locales, think Philadelphia 1776 or Yorktown 1781 — but we’re extremely far from that, especially reckoning the liberty, security, wealth, and greatness costs of disunion. Today, secession is politically a total nonstarter, and for very good reasons.

2. Do States Have a Legal Right to Secede on Demand? No, not because the Union victory in the Civil War somehow settled that question legally, but simply because our legal system has never recognized such a right, and is unlikely to recognize such a right. For an original meaning argument for this position, see Texas v. White (1869) (pp. 725-26); but the more important point is that the law, in the sense of the rules that our current legal system recognizes, does not recognize such a legal right.

3. Is It Legally Possible for States to Secede? Of course, if the rest of the nation sufficiently agrees to this. It’s possible, given the originalist argument in Texas v. White, that Congress and the President can’t accomplish this through the normal federal lawmaking process (plus the consent of the seceding state), though I suspect that ultimately the constitutional question will be seen as a political decision for Congress and the President to make. But even if the Constitution is against this, it can be amended. If 2/3 of Congress, 3/4 of the states, and the seceding state agree to secession, secession will happen, and American legal institutions would view it as entirely legal (and, in my view, correctly so).

4. Is It Treason for People to Call for Secession? Not in the sense of treason defined by the Constitution, “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” Calling for peaceful enactment of a statute, or a constitutional amendment, is neither levying war against the U.S., nor “adhering to their enemies, giving them aid and comfort” in the constitutional sense — aiding enemies with whom we are at war with the specific purpose of aiding them against us. (It’s possible that even speech that would qualify as treason would still be protected by the First Amendment, unless it is done in coordination with the enemy, or is intended to and likely to produce imminent criminal conduct. But here the speech wouldn’t qualify as treason.)

5. May People Who Call for Secession Be Deported? I suspect that calls for this are as hyperbolic as most calls for secession, but, taking them seriously, the answer is “no.” Congress is without power to strip people of U.S. citizenship without their consent, and while certain actions (e.g., fighting in an enemy army) can be seen as implicit voluntary renunciation of citizenship — something of a legal fiction, I think, but a well-established one — mere political expression supporting peaceful legal secession would not qualify. A call for secession may be seen as a desire to surrender U.S. citizenship in the future, in the unlikely event that secession succeeds, not as a voluntary renunciation of U.S. citizenship today.