The need to secede

“To look for a con­tin­u­a­tion of har­mony between a num­ber of inde­pen­dent, uncon­nected sov­er­eign­ties in the same neigh­bor­hood, would be to dis­re­gard the uni­form course of human events, and to set at defi­ance the accu­mu­lated expe­ri­ence of ages.”

—Fed­er­al­ist 6

“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?”

—Chief Jus­tice Salmon P. Chase, Texas v. White, 1868

Mul­ti­ple media sources reported this week that, in the wake of the pres­i­den­tial elec­tion, the gov­ern­ment web­site We The Peo­ple (petitions.whitehouse.gov) had received seces­sion peti­tions from all 50 states with the peti­tion from Texas hav­ing gar­nered more than 100,000 sig­na­tures by mid-week. In response, other peti­tions had been filed ask­ing to allow the city of Austin, Texas to remain in the Union while giv­ing the rest of the state the boot, to require the states to pay their per­cent­age of the national debt before leav­ing and to deport all peo­ple who had signed a seces­sion petition.

These peti­tions, whether filed with hon­est intent or as a tongue-in-cheek reply, col­lec­tively have about as much legal effect as an indi­vid­ual cit­i­zen walk­ing into his yard and loudly pro­claim­ing to no one in par­tic­u­lar that his prop­erty was now the inde­pen­dent Repub­lic of Larry. None the less, they raise the issue of how a state might leave the Union and what it would take for that depar­ture to be legal.

The con­cept of seces­sion is, of course, not new. The ugli­est period in Amer­i­can his­tory is also its stark­est exam­ple of seces­sion — the Civil War. Fol­low­ing the elec­tion of Abra­ham Lin­coln, 11 south­ern states seceded and formed the Con­fed­er­ate States of Amer­ica (in fair­ness, seven of the seces­sions occurred between Elec­tion Day and Lincoln’s inau­gu­ra­tion, dur­ing the wan­ing days of James Buchanan’s pres­i­dency). The Amer­i­can gov­ern­ment refused to accept the seces­sion and the Civil War ensued. Four years, three weeks and six days later some 615,000 Amer­i­cans were dead and nearly half a mil­lion more were wounded.

Not sur­pris­ingly the U.S. Supreme Court, rul­ing in a case about war debts four years later, con­cluded that the U.S. Con­sti­tu­tion did not per­mit a state to uni­lat­er­ally declare that it was no longer a part of the Union and, as a result, the seces­sions by the Con­fed­er­ate states were null and void. To leave the Union then, a state would have to have the con­sent of the remain­ing states or face mil­i­tary action – a sec­ond Civil War.

Nei­ther the Civil War, nor the Supreme Court’s rul­ing have put an end to attempts to leave the Union. Texas, Ver­mont, Hawaii and Alaska have all had recent seces­sion­ist move­ments. Texas Gov­er­nor Rick Perry famously men­tioned the pos­si­bil­ity of seces­sion in a 2009 speech. The ‘Sec­ond Ver­mont Repub­lic’ has held seces­sion­ist meet­ings nearly yearly for about a decade. In Alaska, the Alaska Inde­pen­dence Party is a fac­tor in state pol­i­tics and Wal­ter Hickel was elected Gov­er­nor in 1990 run­ning on the AIP ticket (though he later declined to sup­port a vote on seces­sion and left the AIP to return to the Repub­li­can Party).

As this col­umn dis­cussed just one week ago, the Con­sti­tu­tion also allows for a por­tion of a state to secede from the remain­der and form a new state, though only with the per­mis­sion of the state that it is leav­ing. This has occurred in Amer­i­can his­tory with the cre­ations of Ken­tucky, Ten­nessee, Maine and West Virginia.

Sev­eral recent attempts have been made to carve new states out of exist­ing ones. The Upper Penin­sula of Michi­gan, the Cape Cod islands of Mass­a­chu­setts, Long Island in New York, var­i­ous por­tions of Cal­i­for­nia and por­tions of the Pacific North­west have all made attempts at carv­ing out new states. None of these attempts have got­ten far.

The peti­tions filed on the We The Peo­ple web­site have no legal stand­ing what­so­ever and the act of uni­lat­eral seces­sion remains both uncon­sti­tu­tional and tan­ta­mount to a dec­la­ra­tion of war. As a polit­i­cal state­ment, how­ever, the peti­tions remain effec­tive. Con­sid­er­ing the peti­tions filed in response to them, just what that polit­i­cal state­ment is clearly depends upon your polit­i­cal views.

David Hej­manowski is a mag­is­trate and court admin­is­tra­tor at the Delaware County Juve­nile Court. He has never attempted to pro­claim that his back yard is an inde­pen­dent nation.

Posted by Dave Hejmanowski on Nov 15 2012. You can follow any responses to this entry through the RSS Feed. Comments can be made below.