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Do states have the right to secede?
The topic of the Civil War and some of the issues surrounding that conflict have arisen on this website on a couple different occasions, but I don’t believe we’ve ever hashed out whether the states possess the right to secede.
I think it can be surmised from my earlier argument (the breach of contract discussion) that I believe that state’s do possess the right to secede. It is inherent in the nature of contract that, the parties may withdraw from the compact upon a showing of breach or by mutual consent. The text of the Declaration of Independence argues strongly in favor of the idea that states possess the right to withdraw from their voluntary compacts with the federal government.
Of course, my argument was that the South did not have cause to withdraw and that it was, in fact, the South that breached its obligations under the contract. However, had the federal government breached, I believe a state would be jusitified in unilaterally declaring rescission as the remedy. Loss of an election in itself would not provide cause. But, as we have seen from the Declaration and subsequent Revolution, if one party to the contract fundamentally changes the terms, that can provide cause. The lesson, of course, is that it is incumbent upon the national government to act with restraint and within the confines of the Constitution in order to preserve the Union. Acting beyond the sanction of the Constitution would provide a state with a claim of breach and would provide cause for separation.
Some might argue that the moment for restraint has long passed and that the contract on which this Union is premised has been irredeemibly breached. I think there is still an opportunity for reform so long as the parties remain in parity. But, that only makes the call for reform all the more urgent. I have argued that it appears that the necessary reform can only come from the formation of a third party. Neither of the current major parties appear to have the ability to exercise restraint, to honor individual freedom, or to respect the sovereignty of the states.
December 4th, 2008 at 3:29 pm
“I have argued that it appears that the necessary reform can only come from the formation of a third party. Neither of the current major parties appear to have the ability to exercise restraint, to honor individual freedom, or to respect the sovereignty of the states.”
But you also believe that voting third party is tantamount of murder?
December 4th, 2008 at 3:52 pm
Okay Bill, I swear I will develop that line of argument from the earlier post. In the meantime, it seems that comment has really twisted your knickers. Indeed, the crime keeps getting worse everyt time you accuse me of attributing it to third party voters – is it murderers now that I compared third-party voters to?
December 4th, 2008 at 4:21 pm
The question I have is : Do the States exist? Or do they simply have the appearance of existence. Of course this assumes that a State exists organically, that is, exists substantially and not simply accidentally.
Where the matter is the people and form is the unifying culture. Which further assumes that culture must be of a certain kind in order to act as form. Thus a materialist or consumerist culture is not sufficient as form.
December 4th, 2008 at 9:09 pm
1. Elect Larry Kilgore Governor.
2. I will call the Texas Legislature into special session and ask them to give the people of Texas the opportunity to vote for independence. “Texans have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.” Texas Constitution – Article 1- Section 2
3. Texas will send a “Request for Texas Independence” to Washington. The United States will agree and send ambassadors to Texas helping to facilitate a peaceful separation between our two nations. There is no need to fight.
4. Texas, in exchange for military protection, will allow the United States to continue to operate their $37B/yr military complex in Texas for a period of time. Texas will eventually have the military strength to protect ourselves.
December 4th, 2008 at 10:46 pm
The answer is “no,” no state has any right to secede from the union. The only legitimate way the Union may be dissolved would be by way of a Constitutional proposition ratified by the required number of states.
December 5th, 2008 at 8:03 am
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
Bill, disagree with that? What do you make of that whole consent of the government business? Mere flowery words?
December 5th, 2008 at 9:12 am
Nope, I simply disagree that any one state can unilaterally secede. It must be done according to the rule of law.
Of course, should the rule of law cease to exist due to extraneous causes other than mere desire of autonomy, an effort may be justifiably made to reinstate the rule of law by some means consistent with its purpose and function.
Violent secession is not acceptable when the reasons are a dislike of the democratic result and the desire for human bondage.
December 5th, 2008 at 9:15 am
That last statement is true whether or not one could argue, “Well, its in the Bible, heck it must be okay!”
December 5th, 2008 at 7:03 pm
Isn’t a declaration by a state government of their separation accompanied by the reasons that impelled the state to take that step according to the rule of law? If so, what then justifies the invasion of the South?
December 5th, 2008 at 7:25 pm
No, it is an excuse. Sending a letter to a neighbor stating your reasons for robbing him is an excuse, not acting according to the rule of law.
December 5th, 2008 at 7:36 pm
The justification for “invading” the South was to put down armed insurrection. A power given to the Federal government in the Constitution.
December 5th, 2008 at 8:07 pm
Does a person have the right to rescission if the other party breaches a contract?
December 5th, 2008 at 8:22 pm
Let me translate:
Sending a letter to King George is an excuse and a mere pretext to armed insurrection. Viva Britannia again, eh Bill?
December 5th, 2008 at 8:25 pm
do you mean “Does a person have the right to rescend if the other party breaches a contract?”
normally, yes though the terms of the contract may dictate the terms required for recission.
December 5th, 2008 at 8:27 pm
Do you not believe that the ratification of the Constitution by the states is a form of contract?
December 6th, 2008 at 1:05 pm
Sure it was.
December 6th, 2008 at 1:13 pm
Then you have just contradicted yourself. If a person has a right to rescission if the other party breaches its contract and the nature of the Union is contractual, then upon a breach of that contract, the aggrieved party may withdraw from the contract. Therefore, by your own admission, if a state could show a breach of contract by the federal government, it would be perfectly legal to rescind that contract or, on other words, to secede from the Union.
December 6th, 2008 at 8:17 pm
Karl, you simply don’t READ. It’s simple READing that would prevent you from pointing out the nakedness of the emperor. Geez, why don’t you READ? If only you would have READ what Bill said, you would know that he didn’t not say what you said he did or did not say and then you would or would not know what he wasn’t not saying, and that clearly shows that rescission and secession though analogical are in fact non-sequitiriously disambiguous and emanate from penumbrae of speculations. Get back to us after you READ.
December 7th, 2008 at 12:54 am
V.’s asinine rant aside, I beg to differ with your statement.
What I should have started with was my statement in comment 7. Even a breach of the contract (Constitution in this case) is not enough for rescission. The breach must be the complete or substantively complete withdrawal from the contract by one party. A state may no secede on a whim or because they dislike the way democracy is directing them in relation to the entire nation.
If, say, a dictator was declared and the whole of the Constitution was declared void, then yes, a state may leave the Union with just cause. As long as legal remedies are available to cure the breach, no state has the right to simply walk away. They must abide by the terms of the Constitution until it becomes clear that the other side has no intention of living by the rules so laid out. In other words, a minor breach does not give rise to a right of secession, only total breach with no valid recourse other than rescission.
As to the South, there was no breach by the Union, only the South could be accused of breach.
December 7th, 2008 at 10:30 am
Bill, it seems that you are conceding the question. Your argument only leaves the question of how serious the breach must be before a state may exercise its right to withdraw.
If the federal government were to violate the principles of federalism that underpin the Constitution and the ratifying states’ original understanding of the bargain, would that provide a sufficient breach?
You have noted on more than one occasion during the course of this argument that the Confederacy did not have the right to secede under the circumstances at that time. I agree and have argued (I think persuasively) that they were not justified.
However, I would submit that states today may be justified on abandonment of federalism grounds. The Ninth and Tenth Amendments guarantee to the states and to the people that the federal government is a limited government, possessing power only in the enumerated areas described in the Constitution. Through an expansive reading of the Commerce Clause, the limitations imposed on the federal government have proved to be illusory. The states now have little power to conduct their own affairs. I suggest that this abandonment of federalism is fundamental to the contract.
Indeed, one can see a direct analog between the situation today and the situation described in the Declaration of Independence. In the Declaration the colonies complained that the traditional liberties which were granted to the colonies under their charters by the King had been usurped (with the King’s acquiescence – hence, the complaint is directed to the King although the usurpation was by the Parliament – Indeed, the Parliament had no power to resolve a dispute with the colonies as they were subject only to the King). Over time, this autonomy had been eroded by acts of Parliament until the fundamental agreement had been laid asunder. I think today a similar argument could be made of the original agreement under the Constitution and where we are today.
Certainly, in order to reform the current state of affairs the states would have to awaken to the erosion of their sphere of authority and actually care about it. It seems that the states have become like the frog in a pot, insensitive to the rising heat around them. For this reason, both secession and reform are highly unlikely and my question is purely academic. But, thanks for participating.
December 7th, 2008 at 10:31 am
V, I didn’t have to READ what he wrote. I already knew what he would say. In fact, I suspect I know what he’ll say to my latest…we shall see.
December 7th, 2008 at 10:58 am
I agree that the concept of federalism has been chipped away to one degree or another over the years and this is distressing to me too. Yet it alone is not enough for a state to seceed. Again, The breach is not total or severe enough to justify an end to the Union.
Should a state desire to leave now, it must be done according to the Constitution; a ratification by the several states permitting the depature.
I am not so flippant about our Union to say that in periods of questionable judgment by the SCOTUS of various decisions that the Union either must or even may be dissolved. The breach is neither total nor sufficiently severe, disappointing as some of these decisions may be.
Thank you for READING.
December 8th, 2008 at 9:17 am
If I might then sum up, Bill?
1) Federalism is a good thing.
2) The current Union abhors true federalism and forcibly keeps the People (the ones mentioned specifically in amendments 9 & 10, e.g.) from exercising rights they naturally possess.
3) The incorporation doctrine has been manifestly abused (if, indeed, there might have ever been a legitimate “use”) so as to render the “States” superfluous at best.
4) The only way out, in your view, is the Catch 22 of getting the “States” to let you go, and then wait for SCOTUS to (ha ha) ratify that ratification.
That about it?
December 8th, 2008 at 11:22 am
I will leave it to you, V. to learn the ratification process. Happy studying.
December 8th, 2008 at 11:40 am
Derrrrrr…. gawsh, I sure doan no eff I kin mannij dat, Bill… afturr all, I iz obveeusslee ignernt about all dem mend-mints and evvrything. Gess I bettur read some more of yer fantastik contradictory insight.
December 12th, 2008 at 11:09 am
[...] of powers for the executive branch to conduct an end run around that inconvenient fact. Another breach of contract seems to be in the [...]
February 4th, 2009 at 11:19 pm
[...] resolutions, and b) that the federal government takes heed. I suppose the practical reality of the discussion that Bill and I were having is that states can secede if the federal government breaches its contract with the states. Live [...]
March 7th, 2009 at 4:08 am
Ref #6 above “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” ..Does this open a legal door to completely remove the fed. government and install a new one with a legal case or majority vote? I bet it wouldn’t be hard to convince people our polititians and some departments need to be cleaned out.
March 7th, 2009 at 9:31 am
I think it’s important to remember that the Declaration of Independence is not a legal document. It does not purport to lay down rules of conduct for society. Rather, its purpose is revealed in its opening sentence:
“When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”
It is a document whose purpose is to announce to Britain and to the world the causes of America’s discontent and to lay a basis for her declaring independence from Britain.
Having said that, the principles announced are no less true for the fact that the Declaration is not a governing document. As far as I know, there is no legal mechanism to abolish the federal government by majority vote and there certainly is no case law precedent that I am aware of. There are, of course, other routes, among them secession as a means of abolishing the federal government. At least, for the subset of people who live in a particular state.
The interesting question would be Bill’s suggestion. Could the American people abolish the government through the amendment proc
March 7th, 2009 at 5:45 pm
Constitutional convention would do the trick.
March 12th, 2009 at 9:22 pm
All it would take is for a governor to have the cajones to declare all federal employees persona non grata in his state, provided the vast majority of his constituency was behind the idea. If every non federal citizen of a state stopped doing business with any federal empoyee, stopped any form of cooperation, stopped any transfer of property, they would leave. Passive non violent resistance. Ignore them and stop taking their money, in fact, stop allowing them to define what money is even. Gandhi showed us how to do it.
March 12th, 2009 at 9:24 pm
Of course that will never happen as long as Christian leaders continue to preach Republican patriotic nationalism as they do now.
April 1st, 2009 at 7:47 am
A contract is a matter of positive law, and is always subject to the interpretation of the courts, whereby parties to a contract may seek equitable enforcement, declarations of nullity, etc. A rescinding party to a contract necessarily invites litigation by rescinding. When sovereignties have a disagreement, there is no adjudication available (at least as of 1861) other than war, which settles the questions of positive law in the most definitive manner.
The decision was obviously against those who argued for a right of rescission.
So, no, states do not have the right to unilaterally dissolve the Union. Though you can’t fault them for thinking that they did.
April 3rd, 2009 at 2:51 pm
Mr. WAC,
I would agree that the positive law has endeavored to codify contract law, but I would maintain that contract law was developed through the common law tradition. Indeed, Hobbes, in his treatise Leviathan identified “contract” to be the basis of the mutual exchange of promises undergirding society (before which there is no positive law). From this he develops a list of natural law principles.
Grotius likewise grounds contract in the natural law. Because man exercises his reason in making promises upon which society depends for its own preservation, these mutual promises are enforceable.
You are correct that contracts between sovereigns possess a special nature, namely that there is typically no judge competent to decide between the parties, unless one is bargained for. The promise is still “enforceable” even if there is no competent authority with the power to make it so. For this reason, contractual disputes between sovereigns frequently play themselves out through war.
But to say that one party lost a war that resulted from a contract dispute between sovereigns says nothing about the merits of the loser’s case. You seem to adhere to the maxim, “might makes right.” The victor may have been unjustly “enriched” through his victory even though the victor was the party to breach. Examining who won a dispute says nothing about whether justice was served and because contracts are a matter of natural law, this is all the more so.
For instance, I think we could both agree that a man’s right to defend his life is intrinsic to the natural law, codified into probably every positive code on earth. Nonetheless, it is often the case that, when two men square off in mortal combat, the aggressor is the party to take the life of the other. In no way would anyone claim that the outcome of the combat determined who was right in the first instance. Neither should we commit the same fallacy when examining the rights of sovereigns under contracts.
April 3rd, 2009 at 4:07 pm
While contracts may be a matter of natural law in some respect, the enforcement of contracts is certainly not. So, when you talk about breach and remedy and adjudication (as I was), you are necessarily talking about the positive law as it pertains to contract law.
When it comes to the positive law, might does make right. The positive law is only as good as it’s ability to be enforced. It is “the gunman writ large”, as the guy said.
“Nonetheless, it is often the case that, when two men square off in mortal combat, the aggressor is the party to take the life of the other. . . etc.”
War is intrinsically different from single combat. War is the extension of the political power of a state in belligerence. It’s legally and morally bigger than the soldiers who take part in it. And while I would decline to say that the victor in war is automatically the “right” party in every sense, I’d say that the victor in the War Between the States, which was fought to settle the question of enforcement, is the legally correct party by virtue of its victory.
We can beat the dead horse all we want, but the contracts analogy makes the Federal position “correct” in every case because the Federals asserted it and the CSA, after some horsewhipping, agreed. If you are making a natural law argument, avoid contracts disputes- Revolt rather than recession is the stronger stance to make, if you ask me.
April 6th, 2009 at 10:30 am
The decision was obviously against those who argued for a right of rescission.
In other words, might makes right. Survival of the fittest. Very evolutionary of you.
April 14th, 2009 at 2:52 pm
Yes. That’s the trick about matters of positive law. You can theorize all you want about the ultimate moral rightness of a decision in contracts or property, but the positive law aspects of the case, that is, the ability to enforce the law, hold, and hold definitively, in favor of the party that effects enforcement.
Hate the game, not the player.
April 14th, 2009 at 2:57 pm
“In other words, might makes right. Survival of the fittest. Very evolutionary of you.”
Hey, we’re talking about a G-D War here. Talk about your moral high horses. What the hell makes you, or the lost causers, or the Federal triumphalists, or anyone so damn principled. Society failed. Process failed. Philosophical and legal disagreements were played out to a resolution in human blood. Of course might made right. If not, there would not have been a war to piss on and on about 145 years later.
April 29th, 2009 at 7:38 am
No sense keeping a bible then, or making any attempt to learn Christian morality. Just go out and buy the biggest guns you can find and kill whoever gets in your way. Worked for Lincoln. Might makes right!
I think you’re right. It truly is a god damned war.
April 30th, 2009 at 4:26 pm
What’s amusing to me is how Mr. WAC’s logic fits in to the question of slavery which (allegedly) precipitated the war.