This article addresses certain ways secession might be done legally, but does not address whether or not that is actually a good idea.
The Texas Argument
I’m from Texas and I just want to get this one out of the way. Texas might be able to secede, but if it can it’s not due to any sort of special Texas privilege. The common argument here is that the Texas constitution provides that Texas has a special privilege to secede. Daniel Miller and the Texas Nationalist Movement are big on this. I have not found any good support for that claim. I think this article from The Blaze covers that rather well. You can read on other Texas secession movements here. Really fun reading.
The Historical Argument
This argument holds that states seceded twice before. First the US seceded from Britain and second The Confederacy seceded. The argument makes two points. First, if we did it before we can do it again. The natural problem with this argument is that it didn’t work during the Civil War and caused lots of death and problems. The second Historical Argument point is that since the US has tried to engage in secession there is precedent, and that precedent is strongly supported by a body of legal theory and so on as we will discuss later. This point is seperate from the first point. The first point is that some states are practically able to secede as shown by history. The second point is that even if we are not practically able to secede we should be allowed to legally and politically secede due to the fact that there is precedent. Many even argue that Lincoln was behaving illegally and unconstitutionally by declaring war on The Confederacy.
The Second Historical Argument, AKA The IDGAF Argument
There is a particularly crazy group of people who want to get themselves killed and they make an extreme version of the historical argument. They say that legal theories aside, the only way secession actually works is through rebellion. For example, it was illegal for the US to originally rebel against the British but they did it anyway and won. To reference Texas again, where we find a surprising number of these folks, Texas gained independence from Mexico by illegally and successfully revolting. The IDGAF Argument holds, therefore, that it doesn’t matter if it is legal or not, a state can simply illegally rebel to obtain independence. I suppose this is true, but really? If you’re going to have a rebellion that you think might actually succeed, pick somewhere besides the US.
The Nullification Argument
This argument holds that secession is the equivalent of “nullification writ-all.” The argument is that a state can nullify federal law under what essentially break into two circumstances. The first circumstance is that the federal law violates the federal constitution. In that case the state can supposedly “nullify” or ignore federal law. The key issue here is the question of who gets to interpret the constitution. It really is the Federalists vs the Anti-Federalists all over again. The new federalists who support empowering the national government would use the classic argument that of course the Supreme Court interprets the Constitution! Duh! Chief Justice John Marshall made this true through his ruling on Marbury v. Madison which established the principle of judicial review.
“Not so fast!” Quip the new anti-federalists, as perhaps typified by Tom Woods. This group would say that John Marshall’s attempt to give the Supreme Court the power of judicial review was itself unconstitutional because The Constitution and The Bill of Rights do not give the federal government any such power, but expressly guarantee all other powers to the states and the people. Therefore the ability to render a law constitutional or unconstitutional is in the hands of the states and the people.
The other condition for nullification is altogether different. Some states such as Virginia, but not all states, have in their own constitutions particularly clauses which allow them to “retain” powers which the federal government violates. If the government says Virginians must eat soap, but the Virginia constitution says that only Virginia has the right to tell its citizens whether or not to eat soap, then by the Virginia constitution those powers will be retained to the state. This is another form of nullification.
The Argument from Freedom of Assembly
This argument holds that a state is simply an agreement of association between people and the federal government is the same. Because the Bill of Rights protects the Freedom of Assembly, it is argued, then the states and people can voluntarily dissolve these agreements. There are three problems raised by opponents of this argument. The first is that freedom of assembly may not include freedom of dis-assembly. The second argument is that the right to dis-assembly does exist, but it must be done through amendment to the constitution or through a constitutional congress process, both of which are practically difficult. The final, and most scary I would say, objection opponents raise is to claim that freedom of assembly is not absolute. It is a conditional freedom which may be violated if the federal government has good enough reasons. Things slip quickly down the slope from there as the government is left to determine what constitutes a good enough reason.
The Moral Argument
There is really no moral argument. There are a whole family of different moral arguments. They basically all agree that if the government violates some kind of moral law then it becomes permissible or even required to oppose the government. The Founding Fathers themselves used this kind of argument. My objection to this is that the US has become so ideologically heterogeneous that any deeply moral argument will not, I don’t think, gather enough support to be useful.
I do think there is a distinction between a deep moral argument and a shallow moral argument. A deep moral argument would be one made from a particular religion, or even from a particular interpretation of a particular religion. It would be very deep and convincing for a small number of people. A shallow moral argument would use moral arguments that are consistent with a large number of religions and therefore a large number of people might support it. I think a good example of a shallow moral argument is the Non-Aggression Principle used by libertarians.
My objection to shallow principles like this, however, is that I am not convinced anyone would be willing to lay down their life for a shallow principle. So I see a lose-lose choice for the Moral Argument these days. Perhaps there is some argument out there which can generate sufficient power for organized resistance at a level that would overcome the US’s ability to enforce but I’m skeptical.
The Ultimate Problem With Secession is The Reverse IDGAF Argument
In conclusion, remember the argument where some people don’t care about law and politics? They say that it comes down to who has the power of force. Whoever can enforce the law is the real sovereign. This argument is ultimately true, but it cuts both ways. This argument is actually the primary problem with any argument for secession.
Let’s say the arguments for nullification and others are hypothetically all correct. In this situation the states and people should be able to secede. Unfortunately, contrary to what should happen is what could happen. If the President doesn’t agree with the people, the states, or even the other branches of the federal government he can simply choose to enforce laws otherwise.
- The Rise of Movements Seeking to Create New States Through Secession (volokh.com)
- Americans warming up to concept of secession as additional counties in California go through process (redalertpolitics.com)
- Exposing Unscholarly Straussian Conduct in American Political Thought (nomocracyinpolitics.com)
- Texas Forever! (slate.com)
- California County Votes To Secede From State To Get Federal Funds (crooksandliars.com)
- Another Northern California county votes to secede from state (foxnews.com)