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.”
“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.