What Does it Mean to Secede?

Part 1 in a 3-post series describing the mechanisms of UnUniting.

Mar 13, 2023

As we begin to hear political actors call for “national divorce” - or as I like to say, ununiting the States - it strikes me that we should try to agree upon a shared definition of what the different methods of ununiting may be.

So, over the course of this week, I plan to outline the three major philosophical approaches to changing the effectiveness and/or size of one’s government, for the purposes of making it more effective and responsive.

Up first, the biggest, baddest and best known method:

Secession

Chances are near 100% that you know what secession is, and it’s probably the word you searched that brought you to this post.

Chances are also near 100% that you associate secession primarily with the American Civil War, and as such, you either imagine it as:

the illegal and ultimately ineffective act of impotent rebels determined to preserve an immoral and hateful way of life, OR
a God-given moral right inherent in the Constitution, a political tool for liberty that got a bad name when the winners wrote the history books.

Secession is complicated. But for the purposes of UnUnited, this is the oversimplified definition I am going to run with:

Secession: The voluntary and complete withdrawal of one (or more) states from the Union.

When I speak of secession, I speak about a state leaving the USA, and ceasing to maintain a federalist relationship with it. No taxes paid by the state’s people go towards the federal government; no federal spending or protection is given to the state. The state begins to operate like its own country, free to make whatever laws and international treaties it so desires.

Secession is in our blood.

We will discuss in future posts the long and at times silly history of secession in the United States, but as a tool, it’s inherent in the fabric of the nation itself, and not limited to the Civil War. There have been numerous secession attempts - some half hearted and some full throated - from just about half the states in the union.

Some Americans have considered secession the spoils of a battle fought in the halls of inherent human rights during the Enlightenment, and the animating spirit of the entire Revolution in the first place. John Locke had said:

“When a long train of abuses [are committed by the government onto the people], it is their right, it is their duty, to throw off such Government.”

But that was in a book of philosophy, not law. When we tried to make it into law, it got a little obfuscated. In the Declaration of Independence:

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.

That honestly seems pretty cut and dry. Basically: “if the government gets in the way of our life, liberty, and pursuit of happiness, then if we the governed people consent, we have the right to split and reconfigure.”

And this is “no thanks, we’re gonna do our own thing now” is essentially what we said to King George two-hundred-and-fifty years ago. It comes straight out of Thomas Jefferson, who was cribbing from other writers like John Locke and Thomas Paine and Jean-Jacques Rousseau.

But these clauses are not legally binding.

‘We hold these truths’ is an inspirational introduction, nothing more. It’s the Founding Fathers’ opening number, akin to Jefferson grabbing the mic and shouting “how we feeling tonight, Philadelphia???”

And for every fire-eyed rock-and-roll revolutionary, there is a sober and caution-minded conservative - and for every Thomas Jefferson there is a John Adams. Adams made sure to clarify that:

“Only repeated, multiplied oppressions placing it beyond all doubt that their rulers had formed settled plans to deprive them of their liberties, could warrant the concerted resistance of the people against their government."

In other words, you can’t just go and leave because you’re annoyed at some tiny new law. It has to be due to some inherent deprivation of human rights, something that any objective third party would see and say ‘oh yeah, that shit’s unacceptable.’

And herein lies the problem:

If we can leave the government only if it’s depriving us of life, liberty and the pursuit of happiness…

How exactly do you DEFINE life, liberty and happiness?

Well, Life is pretty simple: the government should protect you, or at least not kill you. (Low bar, but you’d be shocked how often we fail to clear it!)

Liberty is a bit trickier. What if one man’s insistence on his individual Liberty causes mayhem for everybody else? For instance, gun rights activists chafe against regulations, arguing that any attempt by the government apparatus to interfere in a Constitution-enshrined right is tantamount to tyranny. Of course, the government is also there to protect our Lives, so when one citizen’s Liberty to bear assault rifles translates to another dozen citizens laying dead in a Wal-Mart, it could be argued that the government is not doing its job on this front. Ideological arguments about Liberty will always break down into a central moral dilemma of whether it is the rights of an individual or the rights of the society as a whole that should win out - and said moral positions rarely split neatly along state lines.

And then we have Pursuit of Happiness. Talk about a nebulous and unenforceable standard. How are you ever going to prove in court what makes you or anybody else happy?1

So the nation started with an ill-defined idea of secession in our back pocket, which we used to justify breaking up with England and becoming our own independent nation. Awesome, wow.

Now that we’ve ununited… let’s unite.

Yep. After the huge, successful secession of the US from England, the colonies decided to unite together under a federal system.

Of course, this was not unilaterally desired. Many Founders wanted a very loose union between the colonies, if any at all. The idea that the states would function as independent republics, rather than tiny governments within a much larger one, was at considered the best option...

Until suddenly it wasn’t. We established a federalist system that, every decade, did what centralized systems tend to do, and made itself stronger and more powerful.

Human nature being what it is, whenever the federal government in Washington DC was aligned to the sympathies of a region - i.e. New England, the South, the growing West - then those states tended to vote to support the strengthening of the centralized power.

And of course, as soon as the party in power shifted and the feds were no longer aligned to the needs of that region, it suddenly grew to hate the very idea of Washington DC, and threatened secession. (Until they got back into power, at least.)

Consider Sen. Daniel Webster (Federalist / Whig, Massachusetts). During the Nullification Crisis in 1832, where South Carolina wanted to straight-up ignore any federal law it didn’t like, Webster was a staunch advocate of national unity, and dropped the famous soundbyte:

Liberty and union, now and forever, one and inseparable!

Which is an interesting take from a guy who twenty years earlier flirted heavily with the idea of splintering New England off into its own nation to protest the War of 1812.

For the first couple generations of our existence, secession remained only a threat looming in the air, a theoretical ultimatum that both sides could use to bully the other into submission. But then it became untheoretical, when:

We stopped being Civil.

If you’ve somehow come to this article without a working knowledge of the Civil War, then… I don’t know, go watch the History Channel or something.

Suffice to say, when the South seceded over the perceived future threat that Lincoln’s election symbolized, Lincoln and the remainder of the Union decided to go to war, rather than make it a peaceful secession. Four bloody and terrible years followed. The North won. The South was re-encompassed into the Union and slavery was outlawed.

But contrary to popular belief, the North’s winning the Civil War did not outlaw secession itself.

It is true that in Texas v. White (1869), the Supreme Court ruled unilateral secession unconstitutional. As the Constitution was an agreement between the states to form a more perfect union, said union was perpetual2 - meaning this shit exists forever - and by the way, that compact applied to any other states added after the original thirteen.

However, this theory was from the not-exactly-unbiased Chase court; Salmon Chase had been a Lincoln appointee, a Lincoln Cabinet official, and one of the leading pro-Union voices. They didn’t call it “activist judging” back then, but that was the gist.

And, the Court debatably left the door open to future secession, saying that if a state did prop up an invalid form of government, its basic functions towards the people might still hold legally. In other words, a revolution of a state was illegal - but if it somehow successfully seceded, its government would be valid.

The idea of ‘perpetuity’ is glaringly stupid.

Not to mention unenforceable. Sure, ‘perpetuity’ has a legal definition and all, but nothing lasts forever. I am sure many Romans, at the height of the Empire’s extent under Trajan, looked around and said ‘this is it, the wonderful Roman Empire cannot ever be broken apart!’ Which it then almost immediately was.

James Madison even himself allowed for this. In an 1833 letter to Webster, Madison affirms an extraconstitutional right for citizens to revolt against conditions of "intolerable oppression." Madison indicates that the case must be made for secession, and if it can’t, then secession is illegal.

But you too can read between the lines. Madison has said “it’s illegal if X…” which implies “but it might be legal, if -X…”

In other words:

If the case can be made for secession, then it is not a violation of the Constitution.

Confusing? Contradictory? Sure. Constitutional scholars are split on this issue, with some holding the view that secession is not prohibited in the Constitution or in any amendment, and in fact is only enshrined in a Supreme Court ruling - which can of course be overturned by the decisions of a future Supreme Court.

TL;DR

Two things should be clear:

Secession may be illegal now, but there are certainly loopholes that can be exploited, and future precedents that could be set to make it legal.

And:

Nothing lasts forever.

But also, happily:

UnUnited