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Two Excellent Books on Secession:

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.

J. Aldridge:
Strictly speaking, under the form of mixed government chosen secession should be a non-topic. States retained the most important domestic sovereignty independent governments seek.

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.
8.11.2008 5:18am
dearieme:
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?
8.11.2008 7:36am
M (mail):
Dearieme- that's certainly not "generally agreed", though white supremicists and confederate apologists certainly assert is regularly enough that one might think so.

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.
8.11.2008 8:45am
martinned (mail) (www):
L.S.,

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.
8.11.2008 9:10am
dearieme:
Thanks, M, but on what grounds were the actions of the Southern States unconstitutional? "Nasty swine" doesn't seem to me to be a legal argument. Nor is "the blacks didn't have a vote" since that, alas, was constitutional. If one is to believe in constitutional government, one surely has to believe in abiding by the constitution especially when one happens to wish that the constitution were different. Otherwise it all becomes just a sanctimonious charade to hide a government of men, rather than law, after all.
8.11.2008 10:03am
Boularderie (mail):
LS is dead right. Almost lyrically, the Supreme Court of Canada intuited and then captured the essence of the values that created a country and with them, how those same values shape how it should dissolve. Magically, it did so per curiam It is a model of the interface of constitution and generosity and balance for any iteration of any federal debate.
8.11.2008 10:10am
M (mail):
Dearieme- there is no provision in the US Constitution for a state to leave. (I think maybe you're thinking of the Declaration of Independence, which isn't a source of law.) Does this mean a state may not leave the Union under and circumstances? I don't know, but it does mean that there is no "constitutional right" to secede in the US Constitution, and therefore the southern states were not acting within their constitutional right to unilaterally secede.
8.11.2008 10:17am
martinned (mail) (www):
L.S.,

@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.
8.11.2008 10:38am
Ken Arromdee:
It is also important, I think, to insist that states (like people) should not be allowed to profit from their own wrong-doing.

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.
8.11.2008 11:12am
Hoosier:
dearieme:
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."
8.11.2008 11:21am
Stacy (mail) (www):
"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."

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.
8.11.2008 11:35am
Dave N (mail):
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?
Which is why James Buchanan is our most revered former President.
8.11.2008 11:37am
CJColucci:
I'm open to being shown where the Constitution anticipates a state seceeding and preemptively forbids it,

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?
8.11.2008 11:43am
Brett Bellmore:

Dearieme- there is no provision in the US Constitution for a state to leave.


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.
8.11.2008 11:52am
Stacy (mail) (www):
"if the claim is that the Constitution contemplates lawful secession, there must be a recognized procedure for seceeeding. Where is it?"

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.
8.11.2008 11:56am
M (mail):
Has any court held that to be a proper interpretation of the 9th Amendment, Brett? I'm sure the answer is no. Now, that doesn't settle things, in some sense, but your interpretation is far from obviously right. We'd have to know that this was one of the "rights retained" and we don't have an argument for that, at least not a very good one, and some indirect evidence, given by others above, against the view.
8.11.2008 11:57am
Brett Bellmore:

"Generally agreed"? Not by Lincoln or Grant. So I'd have to say "no."


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. ;)
8.11.2008 11:59am
martinned (mail) (www):
L.S.,

@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.
8.11.2008 12:13pm
Hoosier:
martinned:

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.
8.11.2008 1:24pm
CJColucci:
Obviously there's no procedure [for secession], any more than there's a procedure laid out holding elections.

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.
8.11.2008 1:41pm
MarkField (mail):

Has any court held that to be a proper interpretation of the 9th Amendment, Brett? I'm sure the answer is no.


In Texas v. White, the Supreme Court held there was no right to secede.


Obviously there's no procedure, any more than there's a procedure laid out holding elections.


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."
8.11.2008 1:44pm
some dude:
An issue I wondered about is the national debt. If a state or states were to secede by whatever means, would they leave the debt behind? Would the debt get divided up?

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.
8.11.2008 2:25pm
MarkField (mail):

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...).


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.
8.11.2008 2:34pm
zippypinhead:
I'm having deja vu all over again. Reruns of the same arguments folks made following Ilya's post a little over two weeks ago.

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]
8.11.2008 2:41pm
Don Miller (mail) (www):
I admit, my world-view is slanted by by military service. I need to view world events and politics by the prism of national security.

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.
8.11.2008 3:08pm
some dude:
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.
I think you are proving my point. Unless you think the United States is akin to a "club," that analogy doesn't even work anymore. What is the "United States"? A team? Hardly. In England today do they say "the United States are"?

I think that my idea, my, uh... my analogy of a gentlemen's club is-is fair enough. It's clear enough. Colonel, think on it, now. Now you suppose that we all join a club, a gentlemen's club. And then, well, after a time, several of the members began to, uh... began to *intrude* themselves into our private lives, our home lives. Began tellin' us what we could do, what we couldn't do. Well, then, wouldn't any one of us have the right to resign? I mean, just... resign. Well, that's what we did. That's what *I* did, and now these people are tellin' us that we don't have that right to resign.
General Pickett (from the '93 movie "Gettysburg")
8.11.2008 3:13pm
Stacy (mail) (www):
MarkField: "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.""

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.
8.11.2008 3:23pm
CJColucci:
All it says is that Congress and/or state legislature will make the rules.

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.
8.11.2008 3:31pm
David M. Nieporent (www):
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?"
Yes. See Martined's post. And his list wasn't even exhaustive. Article VI also says, "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this 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.
8.11.2008 3:55pm
SATA_Interface:
And look how well Pickett's Charge worked in Gettysburg. To the victor go the spoils of Constitutional interpretation!
8.11.2008 3:57pm
dearieme:
Some of you seem to feel that your constitution reduces to "Might is right", which seems pointless to me. I stick by my supposition that the USA you now have was formed by two entirely unconstitutional acts - the Louisiana Purchase and the Civil War - and so your worship of the Constitution is just a religion indoctrinated from childhood. Perhaps the Canadians actually stick to theirs? But I wouldn't bet on it.
8.11.2008 4:12pm
MarkField (mail):

In England today do they say "the United States are"?


Yes.
8.11.2008 4:18pm
MarkField (mail):
In fact, they even say "England are".
8.11.2008 4:18pm
some dude:
In fact, they even say "England are".
Oh. *Blushes*

I don't think James Bond ever said that.
8.11.2008 4:31pm
John Stephens (mail):
What if...

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?
8.11.2008 5:02pm
MarkField (mail):

Oh. *Blushes*

I don't think James Bond ever said that.


I watch a LOT of soccer with English announcers. Even after years of hearing it, I find it sounds "off".
8.11.2008 5:24pm
Jeff Dege:
With respect to whether the South should have been allowed to secede, I submit that it would be better phrased as whether the South would have been allowed to secede. There were clearly many in the Union who believed that the South had no such right, but there were many who believed that it did. Regardless of what Lincoln believed, it is by no means certain that Congress would not have recognized the secession, if South Carolina had not fired on federal troops at Ft. Sumter.

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.
8.11.2008 5:36pm
TGGP (mail) (www):
Is divorce really a good analogy. Those who marry at least say "I do". Was that ever the case for the South Ossetians? As Lysander Spooner noted, none of us ever agreed to be under the rule of our government. Secession is thus No Treason.
8.11.2008 10:23pm
DJW868 (mail):
While I can well imagine what the succession of a state on an institutional level would look like, what does succession mean for the citizens? Aside from residency requirements for taxes, driver's licenses and in-state tuition (and the oil bonuses in Alaska), citizenship is a federal affair. No state issues or requires a passport, and anyone can move where he or she likes. So what happens with regard to citizenship at succession? Or in the interegnum between statehood and succession? If California, for example, were to declare statehood with the consent and best wishes of the remaining 49, could everyone simply rush in and claim citizenship in the new country, or would every living in California automatically lose US citizenship?
8.11.2008 10:36pm
David M. Nieporent (www):
As Lysander Spooner noted, none of us ever agreed to be under the rule of our government. Secession is thus No Treason.
Actually, as I pointed out above, all southern officeholders did so explicitly agree. Private citizens may not have, but government officials did.
8.11.2008 10:39pm
Hoosier:
"As Lysander Spooner noted, none of us ever agreed to be under the rule of our government. Secession is thus No Treason."

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.
8.12.2008 12:02am