Does a State Have a Right to Secede from the United States?

Unarmed Gunman

Unarmed Gunman

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May 2, 2007
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This is an interesting question for several reasons, and I haven't found a definitive answer as to whether it is "legal" or not. Clearly the federal government treats it as illegal, as evidenced by the Civil War. However, the provision in the Articles of Confederation that explicitly disallowed secession was not included in the Constitution.

Since any powers not enumerated in the Constitution are supposed to be left to the states, it would seem like rules of secession would be left up to each individual state and handled by whatever procedure called for by each state.

If a vast majority of the voting public in South Carolina (looking at you Mr. Monarch) wanted to leave the union, but were not allowed, then how could the federal government qualify as being legitimate based on our own Declaration of Independence?

Declaration of Independence said:
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
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Based on my reading of this, it would seem like disallowing secession actually de-legitimizes the federal government, by their own definition.

If secession is legal, then how do we justify the murder of hundreds of thousands of soldiers in the Civil War after their attempt at secession?

*Disclaimer: this is an intellectual discussion only. I am not calling for secession so please point your drones at some other American.
 


This is an interesting question and one I put a bit of thought into a few years ago when Texas Governor Perry mentioned succession in one of his speeches.

Since I'm not a lawyer or a Justice, I can really only go on what I've read and my own personal opinion.

I think under the right circumstances individual states would have a possibility to secede, but it would have to be mutually agreed upon by both the Union and the State. That being said, I think there is probably only two states that would be able to survive as a sovereign nation, New York and Texas. New York because of the financial epicenter they are and Texas because of the oil industry. However, the Union would never agree to allowing those states to secede because of the importance of those industries to the nation.

As far as the Civil War goes, again I think if it had been one or two states attempting to leave they may have been able to do so. But for the whole South to leave was never going to happen without bloodshed. Removing the South would have collapsed the entire economic model of the country at the time. Too much money in taxes and trade would have been lost to ever allow that to happen.

There's no way for me to verify the accuracy of the following, but apparently this guy's brother had written a letter to Justice Scalia about a state's right to secede. Scalia responded to the the letter with this response

I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court. To begin with, the answer is clear. 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.”) Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit. I am sure that poetic license can overcome all that — but you do not need legal advice for that. Good luck with your screenplay.
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Other Justices also responded to letters the man's brother sent, but declined to advise him on the question. Those links can also be found on the page I linked to. Like I said I have no way of verifying the authenticity of these letters, but the guy's a lawyer and posting them on his law blog so I'm tempted to give him and his brother the benefit of the doubt.


In short, my feeling is that if the state and the federal government met and mutually agreed that it was best for both parties to part ways it would be possible for the state to secede. However, if a state just decided to secede on it's own it would probably have to end with military interaction since it's unlikely this could ever go to court for the reasons mentioned in Scalia's response.


Here's the image of Scalia's response letter.


iEWXB.jpg
 
the United States cannot be sued without its consent, and it has not consented to this sort of suit.
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Bad Ass - imagine responding to a C&D letter?

"I'm sorry - but I am not giving you consent to sue me and I will continue to use your name/logo to push berries - thank you very much"
 
I'm confident that the federal government would never consent to a state secession, so that's probably a moot point. Let's assume that the vast majority of the population of a state want to secede though.

My question revolves around the "consent of the governed" as stated in the Declaration of Independence. It seems like limiting the right to secede goes completely against that, which should thereby render the rule of the federal government null and void since consent has been removed by the people.

The fact that the federal government would enforce that union with violence also goes against the whole concept of "consent of the governed"...
 
JRose said:
That being said, I think there is probably only two states that would be able to survive as a sovereign nation, New York and Texas. New York because of the financial epicenter they are and Texas because of the oil industry.
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I like to think that Hawaii would be able to survive due to it's thriving tourism industry not that I care whether this state secedes or not. On a side note Hawaii has been trying to declare itself as a sovereign nation for decades with no luck. Proponents here have even take their case to the international court which if I remember correctly decided that the United States overthrew the Hawaiian Government illegally which only resulted in a carefully worded apology from Bill Clinton.
 
My question about secession is this: Why form an Army?

There is nothing to stop a state from Succeeding if it says it did... If the vast majority of the ppl of SC wanted to truly seceed from the union, why not just hold a press conference and say "As of noon today South Carolina will be known as Bob's land and we no longer will collect federal taxes as we have officially secceeded. No wars, thanks. We simply no longer recognize the USA as our country."

Assuming this news got out, which I'm sure could happen before the internet is fully clamped down, the rest of the world would stop the evil USA from merciless killings in South Carolina... Because if they don't form an army the only response from federal agencies would be slaughter and naked hostility... Basically what we see in Syria today.

Of course the state would need to be self-sufficient, but if one state was successful, then many others would likely follow suit.
 
I would imagine the argument would go something like this as far as the "consent of the governed" aspect.

Since the Federal Government governs the entire nation and not simply an individual state, the consent of the nation would be considered "consent of the governed", and the wants of a singular state would be disregarded in favor of the wants of the nation as a whole.

Additionally, Scalia's position that the Civil War resolved the Constitutional issue of a state's right to secede, with the implied resolution being that no succession rights exist, would likely be held by a majority of Justices.

If the argument is stated as the "consent of the nation" and not the consent of the individual, which is how I would interpret that part of the Declaration of Independence since the US is a representative democratic republic, I have to believe the argument of "consent" would fall in favor of the nation.

As to the matter of the federal government using violence to enforce the union going against the concept of "consent of the governed"; in this instance I feel the "consent of the governed" is meant to mean the "collective people" and not the individual persons. If the consent of the governed where meant to be the consent of individuals (in this case the state would be considered an individual because it's part of the collective Union) it would virtually nullify any and all laws created at both the state and federal level.

If a law the federal government creates goes against my personal consent, or even the consent of an entire state, said individual or state is still beholden to that law because of the powers given in the Constitution for Congress to pass said law. In order for the law to be removed, a majority of the legislative representatives would be needed to remove it before the individual could engage in the legally prohibited activity. The fact that this is how the system works lends credence to the notion that the "consent of the governed" is not the consent of the individual, but rather the consent of the "collective".

If that's the case, while it would be a horrible sight, it would not only be the governments right, but it's duty to the "collective governed" to use force to prevent a state from leaving the Union.


Edit: Luke

The problem with that is that realistically what would happen is this. South Carolina would declare it's leaving the US. The US would send in the military to remove South Carolina officials from office. If the Armed Forces in South Carolina refused to carry out the order to remove SC officials (peacefully), the entire state's army would be guilty of disregarding orders from their commander-in-chief, stealing federal property (in the form of all military equipment) and probably about a hundred other things. This would be viewed as an act of aggression and forces from outside SC would be brought in to carry out the orders. The only way it would be possible for South Carolina to stop this would be by raising an army. Otherwise the government would simply walk them out and strip them of power declaring a military emergency and taking control of all state assets and land. It would either be an unsuccessful secession, or it would turn into a battle ground.
 
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lukep said:
There is nothing to stop a state from Succeeding if it says it did... If the vast majority of the ppl of SC wanted to truly seceed from the union, why not just hold a press conference and say "As of noon today South Carolina will be known as Bob's land and we no longer will collect federal taxes as we have officially secceeded. No wars, thanks. We simply no longer recognize the USA as our country."

Assuming this news got out, which I'm sure could happen before the internet is fully clamped down, the rest of the world would stop the evil USA from merciless killings in South Carolina... Because if they don't form an army the only response from federal agencies would be slaughter and naked hostility... Basically what we see in Syria today.

Of course the state would need to be self-sufficient, but if one state was successful, then many others would likely follow suit.
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You should have been alive long enough to know that the law means jack shit and what's 'justified' means jack shit when something gets in the way of the U.S and power.

In a world full of non-stop deception do you really think a secession would be that clean? Dream on. The day after South Carolina seceded there would magically be a 'terrorist' attack on the remaining United States by some new SC 'terrorist' group. We would then have pretense for war and boom it's on. The 'terrorist attack' will have whipped the usual Good Ol' Boys up into a frenzy and they will go to SC and burn each fucking city to the ground taking time only to rape the women. In the end SC would be begging to pay taxes.
 
There's actually something to that guerilla, in the fact that states were developed with rather arbitrary boundaries, and without the people to populate the state there would effectively be no state. So I guess, my thinking is if the residents of a state want to secede from the nation the simplest way to do so would be to remove themselves from this nation to one they find more suitable and avoid the unnecessary loss of life and liberties that would surely ensue.

The Feds do directly own about 30% of all the land in the US and have large plots in every state. So any state wanting to secede from the nation would also have to deal with that, which I'm sure wouldn't go over very well with Uncle Sam.

As a side note, if i type succession when I mean secession one more time I'm going yell!
 
If you're interested in heavy duty thinking on secession check out Hans Hermann-Hoppe and Tom Woods.
 
The OP poses an interesting question. From a strictly legal sense, courts have primarily relied upon an old 1869 U.S. Supreme Court case known as Texas v. White, 74 U.S. 700. Here's a key quote from that case which, under the laws courts go by to determine "valid" case law, is still good law:

Under the Constitution, though the powers of the States were much restricted, still, all powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively, or to the people. . . . [T]he people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence[;] . . . without the States in union, there could be no such political body as the United States. Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States. When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.
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Source: - Google Scholar

I'm not claiming I agree with the Court's reasoning, but I thought I would throw this out there as food for thought for this discussion.

Personally, I think the rights of the states have been under attack from Washington for decades and are weaker than ever. Secession is definitely an option in my mind when Congress and the President go too far. It's only a matter of time before it happens somewhere in the U.S.

And yes, I am a lawyer...
 
JRose said:
The Feds do directly own about 30% of all the land in the US and have large plots in every state. So any state wanting to secede from the nation would also have to deal with that, which I'm sure wouldn't go over very well with Uncle Sam.
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That's actually semi-related to why I used South Carolina as an example, rather than a state that was formed by land bought, won or stolen by the Federal Government after the Union was formed. In other words, the same argument for secession would not legally exist for Louisiana since they owe their existence to land bought by the federal government as a whole.

Not that the Federal Government doesn't own land in South Carolina now (it owns land in every state), but it was one of the original colonies and existed under its own government charter prior to the forming of the union. Therefore, they were asked to give up their sovereignty, which means they were offered something in return.

Look at the language of the Declaration Of Independence:

Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.
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When the 13 colonies declared their independence, it was not just a declaration of their independence from Britain, but also their declaration of each being an independent state (read: nation) with all of those rights that a sovereign nation declares itself to have.

Therefore, when it came time to form a union, each state was being asked to give up its sovereignty, and transfer those rights that they had just declared in 1776 over to a federal government. The initial document that was used to establish the union was the Articles of Confederation, and it specifically forbade secession in that document.

However, that language was not included in the US Constitution which replaced the Articles of Confederation, and several states included clauses allowing them to secede, which held up ratification for a couple of years. Since the powers of the federal government were enumerated by the Constitution, and the Constitution did not forbid secession as the Articles of Confederation had, several states agreed to form the union based on the understanding that they retained the right to secede at a future date.

MediaBuysEyez said:
From a strictly legal sense, courts have primarily relied upon an old 1869 U.S. Supreme Court case known as Texas v. White, 74 U.S. 700.
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Yeah I read that. My only concern though is that it was decided after the Civil War, after the federal government took up arms against its own citizens. If states had retained the right to secede (as it seems like they had based on the Constitution), then that would make what the federal government did in the Civil War illegal. It would be like me stealing a car from a GM plant, then registering it in my name and claiming rights to it since it is in my name. There is a legal term for not being able to make an illegal act legal, but I forget what its called.
 
WickedJoe said:
This is pretty much the truth of it all.
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You're right, and Matt is right.

The system is inherently about violence, not law or some higher philosophical principle of government.

UG is using the word "right" in the thread title. Rights are legal constructs, which vary from region to region, judge to judge etc.

Whether or not a "state" has a "right" really comes down to what the deciding judge or judges had for breakfast that day.

(Statistically, that is true. Judges tend to make different choices earlier in the day than later in the day. You never want to go to court in the afternoon, they are generally less sympathetic.)
 
Kiopa_Matt said:
If that state has a powerful enough military to fend off the US military, then yes, it's legal. :)
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Came here to say pretty much this ^. A state's right to secede is equal to the will of the people within that state and the military strength that the state has to back up that will.
 
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