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Thursday, October 04, 2007 

The South (and Vermont) Will Rise Again

I spotted a link to this story on Drudge last night. Two secessionist groups, the Vermont-based (AKA liberal as hell) Middlebury Institute and the League of the South (possibly, slightly right wing?), met in Tennessee to break bread and smack talk the Union. Both of these groups have gripes about policy in the United States, and they think that the answer is to split a handful of states from the country...
If allowed to go their own way, New Englanders "probably would allow abortion and have gun control," Hill said, while Southerners "would probably crack down on illegal immigration harder than it is being now."
There are definitely regional differences across this great nation of ours. It's bound to be that way; it's a big country. While not a complete solution, I think that a revival of federalism principles would soothe some of these tensions. It's okay to let New York do one thing, policy-wise, and let Alabama do another. We tend to federalize everything though. It seems like the federal government expands its reach every year.

Of course, federalism won't solve everything. It won't do much to calm the ire of the Middlebury folks about the war and issues like that. But I think it would do the country some good to allow differences of opinion and policy in the states. After all, they are the laboratories of democracy.

Is secession constitutional? Well, that depends. Prof. Michael Dorf wrote an interesting article after the 2004 elections about that very topic. Dorf says that unilateral secession isn't allowed, but mutually agreed upon secession might be okay.

The argument made by unilateral secessionists is the following...
Because the Constitution derived its initial force from the voluntary act of consent by the sovereign states, secessionists argued, a state could voluntarily and unilaterally withdraw its consent from the Union.

In this view, the Constitution is a kind of multilateral treaty, which derives its legal effect from the consent of the sovereign parties to it. Just as sovereign nations can withdraw from a treaty, so too can the sovereign states withdraw from the Union.
Dorf lists President Lincoln's arguments against unilateral secession, but he points out the problems with each one. The professor then offers the best counterargument, one not explicitly made by Lincoln...
Whatever the status of the states when they entered the Union, they perpetually gave up important attributes of sovereignty in doing so. Among these was--and is--a right of unilateral secession.

In this view, it is significant that Article VII sets out the provision for original ratification, and that Article IV empowers Congress to admit new States, but that no provision of the Constitution authorizes a state to leave the Union. The juxtaposition of what the Constitution says about states entering the Union and what it does not say about them leaving, indicates that the door to the Union swings in but not out.
Dorf also quotes the 1868 case of Texas v White where the Court said "The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States."

Dorf goes on to discuss mutually agreed secession, which he thinks is probably okay. There are problems about how it would be done, though. What if Congress controlled the process...
Suppose that Congress simultaneously received secession petitions from all the blue states, and that the Congressional delegations of these states all supported these petitions. Suppose further that a minority of the Congressional representatives of the red states also supported the petitions. (Their reaction: "Good riddance.") Adding the votes of representatives from the blue states to the votes of representatives from the minority of red states would yield a pro-secession majority in the existing Congress.

But notice what happens if Congress permits secession under these circumstances: Secession will have been allowed even though a majority of the representatives of one of the resulting pieces--the remaining red state rump United States--opposed it. That hardly seems consistent with the notion of secession by mutual agreement.

One might thus conclude that Congress can only approve a secession petition if the controlling bill obtains a majority of the votes of representatives of non-seceding states in both houses of Congress.

But while that solution makes some theoretical sense, it is also, from a constitutional perspective, arbitrary. Why this particular mechanism rather than some other mechanism--such as a national referendum, or a two-thirds (or three-quarters or three-fifths) vote in the existing Congress?
Dorf then looks to the amendment process as a possible solution...
Although the Constitution sets forth a number of mechanisms for its own amendment, the same procedure has consistently been used: Proposal of amendments by a two-thirds vote in each house of Congress, followed by ratification by three-fourths of the state legislatures. This formula seems well designed to ensure that any secession petition has the backing of the nation as a whole.
I don't expect chunks of the nation to break off in my lifetime. I just don't see enough support for it. The groups mentioned in the article are definitely on the extreme side of this issue. Most people are content to complain about the results of an election, the enactment of a law, etc. and then go on living their lives in our 50-state Union without raising much of a ruckus.

Seems like throwing a state out of the union affects interstate commerce. So...

But thinking about it more seriously, I see two major problems: (1) what you already mentioned, that the majority of the states (that have no intention to leave in the near future) should agree to the secession, and (2) some percentage of the seceding state's populous needs to give its consent.

Problem 2 can be solved by the state using the same procedure it uses to amend its own constitution. They might even write an amendment for this exact purpose (and to withdraw their congressional delegation and show their resolve in the matter).

Problem 1 is completely moot. Why? If any states want to leave, it seems a constitutional amendment would be required to describe the process (the court would require it). And if a majority of states want to leave anyways, then it will be easy enough for them to write themselves out of the Union.

And if there are enough states ganging up and writing their own amendments, it's probably better that they secede anyways.

NAP

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