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Secession: Settled Law?
I hadn’t given the secession scenario much thought since Texas Gov. Perry raised the issue nearly a year ago. Now, we have this intriguing little story about a New York personal injury lawyer, his screenwriter brother, and Supreme Court Justice Scalia.
30 Responses to “Secession: Settled Law?”
Time to amend the constitution so that there is a mechanism for a State or multiple States to secede…
It'll get the would be secessionist to either shut up or man up…
Several states refused to join the union without the explicit understanding that they could leave it at any time. I've even heard arguments that the southern states could have succeeded with, at most, a good court battle, if they had done it properly.
Regardless, I don't see it happening anytime soon. The divorce alone would take probably 15 years, since no one would want the debt.
Other than taking money from the Federal Government, nurturing the KKK and producing strange fruits, I am pretty sure that Southern States have not succeeded at much of anything…
Man, it's like my English teacher followed me! The spell checker didn't complain, OK?
ProfE,
The play on words is irresistable. Since you brought it into being, I nominate you for the task of writing a pamphlet titled “How to Succeed at Seceding”. Perhaps Gov. Perry – or someone on his staff who can write – can be convinced to do a jacket blurb.
I know some people on the ideological fringes who aren't going to be very happy with that. Maybe they can channel their frustrated energies by starting work on thier moats.
Well, I guess that's good. Secession of any state — but particularly the one who actually wants to secede — would be just about the worst humanitarian crisis I can think of.
It would be boom for the civilized parts of the country and a blessing to mankind… Think of how many wars the CSA could start…
Boy are you behind the times. Get into tunnels, that's where the money is!
Strongly disagree. In fact, I find that stance extremely immature and short-sighted. Of course, you may just be speaking in jest, or haven't actually thought out the consequences of Texas secession.
Just a little input from the Constitution. At Article IV, section 3 it provides for a procedure by which new states are admitted into the Union. There is no provision for the voluntary (secession) or involuntary (expulsion) removal of states from the Union. One wonders what would happen if Congress “unadmitted” a state, either based on the state's request or based on expulsion for cause. De-admission would seem to require congressional action, not court action, since it is Congress that is responsible for the admission process.
Aren't you forgetting that the states have to ask to be admitted? That, and initial ratification process, would point to the idea that the union is a voluntary one.
Aren't you forgetting that the states have to ask to be admitted?”
So it's like the old Roach Motel commercial. You can check in, but you can't check out.
Well, the last attempt didn't go so hot.
Interesting that Scalia states “If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, “one Nation, indivisible.”)”. The pledge was written in 1892, well after the Civil War, and should have about as much to do with Constitutional Law as the National Anthem – that is, nothing. Oh, but wait, he's the strict constructionist, not me, so…
To me, the important documents would not be inferred from a war, supreme court justice, or even the constitution. They would be the papers that might give some insight to what the original intent was when the constitution was ratified. In a very basic sense, it is a contract between the states, so the original understanding between the signers of that contract would be significant.
Meanwhile, there's a move afoot in South Carolina to ban US currency.
Duck says, “So it's like the old Roach Motel commercial. You can check in, but you can't check out.”
Or maybe like the Eagles song, Hotel California. “You can check out any time you like, but you can never leave.”
That would open a real can of worms. States are explicitly not allowed to print their own currency. At the same time, the federal government is obligated to have one. However, that's currently been out-sourced to the Fed, and I don't think it can do that. A quick search shows that I'm not the only one:
http://www.theamericanview.com/forums/showthrea…
http://dmc.members.sonic.net/sentinel/naij2.html
Tidbits, do you know of any court cases challenging the Federal Reserve or the US Treasury for this? I couldn't find a reference to any real court cases.
I'm interested in what you say about original intent.
I'm not going to go on and on about the obvious differences between 2010 and 1789. I'm going to guess, though, that you think it's perfectly fine for women to vote. Please correct me if I'm wrong about that. How do you square that with the original understanding of the founders?
Rather unrelated to question of the union, but I'll answer.
The main point that I see in the constitution was the answer to a very difficult question: who watches the watchers. It was intended as a way to mitigate the abuses that they suffered under both the rule of England, and the problems with the Articles of Confederation. In other words, it wasn't so much about what they wanted to have, but what they were trying to avoid. So, even though they weren't thinking about the slaves, or women, or even those that didn't own land voting, keeping those groups out of power wasn't the purpose of the constitution.
You have the same judgement as the fictional man of la Mancha. To begin with Texas is not and has never been a southern state. It is appropriately designated as a southwestern state, a critical distinction and a person of your rare intellect should understand. Your entire blather about the KKK etc., is a non sequitir to the thread's subject. By the way, how many people retire north?
To the discussions central issue, I'll be damned if I'll let Texas get away. If the rest of the US have to endure the havoc that W, DeLay and Cheney reaked Texans do to. The boys belong to Texans and they pay too.
It was Southern enough to join the CSA… It was also Southern enough to be a slave state… It was also Southern enough to secede from Mexico right after Mexico made Slavery Illegal, and was willing to secede from the USA to keep Slavery legal…
Google Timeline Lynching Texas
South revisits ghastly part of past
As far as I am concerned if Texas wants out, all they have to do is have a plebiscite, accept their share of the National Debt and give up all the Nukes that exist in their State. Good riddance to bad trash…
Hey Prof–
Thanks for answering. I agree that the Constitution was intended to answer a difficult question, but “who watches the watchers” is a bit too melodramatic for me. The founders, I think, wanted a government that wouldn't be as overbearing as the King but more practically functional than the Articles of Confederation.
Since you bring up the topic of slavery, however, let me point out Article 1, Section 2:
Of course the founders considered slaves–and considered them in a way that permitted slaveholding states disproportionate representation in Congress. It's not like the slaves–Persons bound to Service for a Term of Years–were permitted to exercise three-fifths of a vote! The issue of slavery seems like a pretty big problem for the notion of original intent.
Also, I have to point out that the Bill of Rights was contemporary to the unamended original text of the Constitution, and as such is also a reflection of their original intent. There is, in fact, plenty in there about what they wanted to have–the right to assemble peaceably, due process, speedy and public trials (I'm sure you know them as well as I do).
I could go on and on about Thomas Jefferson (“fire bell in the night”), Abigail Adams (“remember the ladies”) and John Adams (“despots of the petticoat”), but I'm sure you know them as well. So it seems inaccurate for you to say the founders didn't think about slaves or women.
I'm not very sentimental about the founders. They were just another group of politicians trying to solve some problems. Some of their solutions were enduringly good, but some of their problems just got kicked along to subsequent generations.
I'm sure you've given plenty of consideration to your opinions and I don't expect you to change them. But I hope you'll understand why I think the notion of original intent is inadequate.
Thanks again.
Reference above note.
“Unlax!” La Mancha. Get your panties out of your crack over the south. Make yourself a sazerac and sit back. It's Mardi Gras season. As we say down here in our part of the south “Laissez les bons temps rouler!”
” Think of how many wars the CSA could start…” ” Good riddance to bad trash…”
Appears the CSA isn't the only party wanting to start a war.
I guess this means you won't be moving south. Aw-shucks! We just love people who live in the past.
The combination of French and English is Canada's birth defect, slavery was ours. Jefferson, a slave owner, fought hard to get rid of slavery because (IMO) he knew that if slavery was allowed for some, it could be allowed for anyone. He was quickly corrected, of course, and the 3/5th person was a hard-fought compromise. I didn't mean that the subjects didn't come up, but that they were just obstacles that had to be overcome, not the main goals. If they could see what we have today, I'm sure that they would be far more upset with our form of currency and the size of our federal government than the makeup of the voters.
The Civil War settled a question of force, not of right, or even of law. But the “Civil War amendments” passed after it (during the period that involved the Radical Republicans, the South-hating kind that can bring tears of admiration to Don Quijote's eyes) established, among other things, United States in addition to state citizenship. (What government can do to or do on behalf of its citizens is a legal underpinning for the modern, post-1930s welfare state in this country, I believe.) The states were readmitted after the war, a difference between them and West Virginia (itself formed through means which were constitutionally questionable). States may not deprive US citizens of their rights (which would happen in any unapproved secession). The issue, then, since the civil war is straightforward.
Prior to the Civil War, secession was a right reserved to the states. It doesn't have to be in the Constitution for it to be legitimate. Was neglecting secession and at least the basic process, a flaw in the Constitution? I believe it was. Is it essential to be addressed now? Not necessarily.
(For those who don't know, the right of a Canadian province to secede was brought before Canada's supreme court, related to periodic referenda in Quebec about secession and independence from Canada* and the court said that Ottawa was obliged to negotiate in good faith with Quebec if there was in Quebec [referenda] a “clear majority on a clear question” to secede. Naturally, the lawyers and officials and activists are distorting themselves like crazy to define what “clear” questions and majorities are. We in the USA have not had to face a situation like this, not even in Texas so far.)
As far as what about a secession now, such as mentioned by angry Texans, or earlier by weird rare liberals in some “Blue” states after George W. Bush won the White House? (Usually it's conservatives or libertarians who advocate it or like to visit the topic, which always is fascinating.)
Assume first that it would be a peaceful agreement. As in Canada (the model whoever is interested should study), it would mean reaching agreement not merely “to secede” but to agree on new territorial boundaries (the existing state boundaries are not sacrosanct), and compensation for each other's assets in the others' territories, and the seceders would have to create their own currency — which brings to light one of many things that would have to be divided between the seceders and the remnant USA. Namely, how will the two parties (USA and seceders) divide and each assume their fair or agree share of the US federal (“national”) debt? And (dear to so many Americans' hearts) what of present and future Social Security and Medicare liabilties, for example? And what about federal tax disbursements and expenditures? Will the seceding states have to compensate the remnant USA for federal largesse formely bestowed on it? (What about hydroelectric facilities in the Northwest if Cascadians wanted to secede, for example?) There are many things to agree on before a split could take place — and what kind of split? What about trade issues, travel issues by the two groups of citizens, and what about (as with Canada, and Israelis and Arabs) the idea of transiting across the others' territory in some kind of corridor, if that were necessary? Good luck parting.
This is true whether the seceders became independent or joined Canada (something I've viewed as a derivative or variant secession scenario).
* It's irrelevent that many separatists don't want true separation but “divorce with bedroom privileges,” what they call “sovereignty” (at one time, “sovereignty-association”), that retains Canadian items such as citizenship, currency (and Quebecois decision-making power on central bank matters), and so on.
I want to add one quick note here that dividing the states (partitioning them) and redesigning the states has itself been a fascinating subject and California is preeminent in the case for secession or partition (splitting California into two or more states). One of the problems with partition is if it leaves the parts viable, and in the case of California, its own legislature studied this and determined that an easy split could be made, involving a straight-line boundary (a rare case where it is sensible, rather than clumsy as well as arbitrary), with room for variation that includes the natural boundary I prefer (the Transverse Ranges – the Tehachapi partition), and which would leave each remaining state in about the same condition economically, making neither resulting state much richer or poorer than the other. This is something that is often neglected in discussing a splitting, but even this was a criterion that was well met in the case the Californian legislature studied.
Two New Californias: An Equal Division
Historical and Financial Analysis
[29.3 MB PDF file]
http://www.csupomona.edu/~jskoga/splittingcalif…
Q: What would a partition of California share in common with any Western state (notably) seceding from the USA?
A: Among other things, what would have to be done about … w a t e r ?
“Maybe they can channel their frustrated energies by starting work on thier moats.”
Well, Spence, given who's been upset the past few weeks in conjunction with the Dems' failings lately, and where the secession sentiment was after 2000 and 2004, I know of where one moat might be dug. If it could be a canal big enough for shipping (would need locks), I bet it could even pay.
(That's unless the neighbors dig the canal instead, and you lose that as well as southern lands in the 1800s. Toledo strikes again.)