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WHAT”S WITH THE SECESSION THING? THE REAL QUESTION IS: IS SECESSION LEGAL in A CONSTITUTIONAL REPUBLIC?

There is apparently a resurgence in interest in secession from the Union.  Apparently nearly 750,000 Americans have signed a petition at the White House website calling for some sort of secession from the Union!  It is amazing.  Certainly President Obama should seek out ways to reach out to those willing to advise the White House that they want their state to be out of the United States!

Secession is almost always foolish.  It certainly was foolish to break the Union on human bondage and false racial superiority.  Those who defend the Confederacy must understand that truth.  Compare the South’s national goals with our Declaration principles and the genius of the Constitution; the sought for Constitutional Republic set up under God and Biblical truth in 1776 and 1789 is certainly in contrast a moral and inspiring goal!

Secession is serious.  It’s a political divorce.  It’s a mass renunciation of United States citizenship by an entire state or groups of states.  It means the American flag is a foreign banner.  It means our money will not be the US dollar and whatever it is, that currency will almost certainly be less value than the dollar.  Secession means a different constitution, different laws, higher taxes and the potential for foreign intervention.  It is almost always supremely foolish.

However, foolish is not illegal.  Is there room for secession in a Constitutional Republic?  It’s a serious question.  I would suggest that if a state or states act legally, within their legal and political systems, to leave the Union, it is legal.  The Constitution, before or after the so-called Civil War (It ought to be called the War of Northern Aggression), does not explicitly condemn secession.  It certainly limits what states can do WITHIN the Union.  But there is no provision for a political divorce.  Other constitutions allow for secession such as the unwritten British constitution.  Even the Soviet Constitution allowed secession by one of the fifteen republics:

Article 72. Each Union Republic shall retain the right freely to secede from the USSR.

Of course, it was not intended by the Soviet government or Communist Party that this “right” be exercised.

There is this US Supreme Court case that says secession is illegal:  Texas v. White, decided in 1869.  This case, decided after the so-called Civil War, is more propaganda than a judicial decision.  However, it asks a serious question:

Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation.  (emphasis added)

That is the key question.  We are about to have yet another movie (produced in Richmond, no less!) on Lincoln.  But all Americans must ask to the cult of Lincoln:  Was secession legal?  Ignore the propaganda decision of the 1869 Court.  Either secession is illegal, in which case Lincoln was justified in levying war against its own people to make them stay in a Union their legislative bodies decided they no longer wanted to remain in, or if secession is legal, than Lincoln was certainly something less than an hero.  He not only sought the “…war for conquest and subjugation…”, but Lincoln curtailed civil liberties and endorsed explicitly or implicitly the horrors of Sherman’s war, Sheridan’s war and other rapes of the South by Union forces.  Those are your choices.  Lincoln:  Hero or villain.

Secession is foolish and almost always ineffective.  I would be delighted to see a debate on the legality of secession.  Certainly, it is relevant to the question of whether Puerto Rico should be a state (I say no unless they adopt English as the main official language and it is overwhelmingly sought) and the unique history of Hawai’i’s annexation.


About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

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