How To Make Secession Constitutional

Last night I was giving a talk at a local library on Abraham Lincoln and the Constitution, offering the sixteenth president’s evolving understanding of the document and its implications (including the rather flexible notion of the “war powers of the president”). In the discussion that followed, someone struggled to find a basis for secession (I had pointed out that the Constitution does not mention secession, leaving people to construct their argument upon various interpretations of certain clauses). The questioner was frustrated that he could not establish a basis for secession’s constitutionality, whereupon it hit me …

Why don’t advocates of secession propose a constitutional amendment explicitly defining secession as constitutional?

You would think that with all those people claiming that the idea of secession is gaining ground, that time (and presumably history) are on their side, so why don’t they do this (it seems to me that it would be a more fruitful use of their time than the secession petition epidemic that followed Obama’s reelection, which sought the federal government’s permission to secede … the real Confederates were smarter than that). Stop all this foolishness about supposed “southern nationalism” and the impending collapse of the American republic, and simply pursue a constitutional amendment.

Go ahead, I dare you (and you know who you are). Make my day. Show us that you believe in secession, not by posting or flagging, but by taking actual political action. Seek a constitutional amendment. Do it … and do it now.

Otherwise, we know all that talk is just for show.

38 thoughts on “How To Make Secession Constitutional

  1. Roger E Watson February 21, 2014 / 4:23 am

    The first reason they won’t due this is because they are too stupid. Evidenced by the fact that signing an online petition means nothing, nada, zero. Second reason is they are too lazy. Third reason – take a chance on losing all of those Federal benefits ? Never happen !!

  2. Bob Nelson February 21, 2014 / 9:17 am

    In 1860, the states got very little direct support from the Federal government. Federal revenue from tariffs on imported goods kept the government running, paid the U.S. Army and Navy, built forts and ships and provided some assistance for the construction of canals and railroads although most of that came from private sources. Today, that’s not the case.

    In Michigan, which ranked 38th on a list of per capita Federal spending in 2013, Federal spending outstripped state spending around 3:1 ($3.5 trillion to $1.5 trillion) and was slightly higher than state and local spending combined. Moreover, Federal spending is estimated to increase to $3.8 trillion in 2014 and $3.9 trillion in 2015 while state and local spending is estimated to remain flat at around $1.5 trillion.

    In order to fund Medicare, Social Security, disability payments, unemployment compensation, education and roads/infrastructure, a group of seceded states would have to transfer the tax burden to their citizens via state taxes. Everything I have read on the subject indicates that to do so would at best result in slightly lower taxes for some, significantly higher taxes for others but most likely would be a wash.

    And even if a group of states proposed such a thing, it would never pass muster in either house of Congress and would have no chance whatsoever of being approved by three fourths of the states. It’s all, as you say, “just for show.” Or as I put it, “all smoke and mirrors.”

  3. Mark February 21, 2014 / 9:51 am

    The whole point of the “secession is constitutional” is to nurse a grievance. If something named a secession amendment were put in the constitution it would imply that it was necessary because it wasn’t already implied, so they wouldn’t want to do that. They need to say it was already there or it degrades the grievance they claim to have. “We wuz robbed!”

    And there was a “secession petition epidemic that followed Obama’s reelection”? Why am I always the last one to find out these things? Well like most epidemics these days, the epidemic is entirely explained by a radical change in the method of diagnosis. Do you suppose the epidemic had anything to do with the fact that the administration put up petitions.whitehouse.gov just prior to the election? Nah, just a coincidence. I’ve got some swampland for sale in Florida for anyone who believes that. 😉

    • Jimmy Dick February 21, 2014 / 11:30 am

      They won’t buy the land because they don’t have any money. They always seem to have just spent their last twenty on smokes and a 12 pack. The Social Security or unemployment check only goes so far each month, ya know?

  4. Bob Huddleston February 21, 2014 / 11:18 am

    Let us not forget that, given the chance to correct the errors in the US version, the CS voted down making secession legal. They changed several items, specifically the mealy-mouthed US talk-around-the-S-word, and made certain that there could not be a free state in their new improved country, but the Confederates refused to write a clause setting up a method to allow states to peaceably secede.

    • Jim Vines February 21, 2014 / 2:56 pm

      Was putting secession in the CSA Constitution ever debated in the provisional Constitutional debates?

      • Bob Huddleston February 21, 2014 / 5:17 pm

        Yes, the Confederate Constitutional convention (which was identical to the Provisional Congress) did discuss legalizing secession of *their* states. Secession evidently was not something that the Confederates wanted to clarify in their efforts to improve the US Constitution:

        Given that the Confederate Constitution was so careful to lay out and explain the rights of slave holders, which the slave states had argued was implicit in the US Constitution, it is odd that the lawmakers did not also implicitly provide for secession.

        The following is from the Journals of the Confederate States Congress:

        WEDNESDAY, March 6, 1861.
        Congress resolved itself in Convention.

        Page 873

        Mr. Memminger offered the following as a separate clause of the ninth section, to come in after the fourteenth clause, viz:

        Upon the demand of the convention of any State, all troops under the authority of the Confederate States which may be within any fort or ceded place within such State shall forthwith be removed, except when the Confederate States are in actual war with a foreign power.

        Mr. Stephens demanded the question; and on the question to second the demand, the vote being taken by States is as follows:

        Yea: Florida, Mississippi, and South Carolina.
        Nay: Alabama, Georgia, Louisiana, and Texas.

        The Congress refused to second the demand.

        Mr. Boyce moved to amend the amendment of Mr. Memminger by striking out the same and inserting in lieu thereof the following words, viz:

        That the right of secession of any State from this Confederacy is expressly
        admitted, to be exercised by any State according to its pleasure. That while a State remains in the Confederacy, the decisions of the Supreme Court of the Confederate States on constitutional questions shall be conclusive in all cases capable of decision by legal process. That in such cases as do not admit of decision by legal process, a convention of all the States shall be assembled, in which convention the decision of the majority of the States shall be conclusive, subject only to the right of secession of the State or States dissatisfied.

        Mr. Kenner moved to lay the amendment offered by Mr. Memminger and the
        amendment to the same offered by Mr. Boyce on the table, and called for the question.

        The question was seconded, and the motion to lay on the table prevailed, the States voting as follows:

        Yea: Alabama, Florida, Georgia, Louisiana, Mississippi, and Texas.
        Nay: South Carolina.
        ….

        Page 876

        THURSDAY, March 7, 1861.
        The Congress having resolved itself in Convention, proceeded to the
        consideration of the Constitution of the Confederate States of America.
        ….
        Mr. Hill moved to amend the report of the committee by striking out Article VII; which is as follows:

        The ratification of the conventions of five States shall be sufficient for the establishment of this Constitution between the States so ratifying the same,

        And inserting in lieu thereof the following, viz:

        Section 1
        1. No state, while remaining a member of this Confederation, shall nullify or refuse to obey this Constitution, or any law passed by the Congress of the Confederate States.

        Page 877

        2. Any State, by a convention of the people of such State, shall have the right to demand an issue to try the constitutionality of any law of the Congress of the Confederate States. Such issue shall be tried in a manner to be prescribed by Congress, by a court to be composed of the judges of the Supreme Court of the Confederate States, and of the chief justice of the State demanding the issue.
        3. On complaint made by any citizen, body politic or corporate aggrieved, the President of the Confederate States may, and it is hereby made his duty, in a manner to be prescribed by Congress, to order an issue to try the constitutionality of any law, order or regulation of any one of the States of this Confederation, annulling, violating or impairing this Constitution or any law of the Congress of the Confederate States. Such issue shall be tried in a manner to be provided by Congress, and, after proper notice to the offending State, by the Supreme Court of the Confederate States.
        4. If any State shall fail or refuse to conform to a decision of the court on any issue tried under this section, the Congress of the Confederate States may withdraw from such States all or any portion of the privileges and benefits of this Confederation, without releasing such State from the duties and obligations thereof.
        Section 2
        1. When any State shall desire to withdraw from this Confederation, such desire shall be communicated to the Congress of the Confederate States, through a convention of the people of such State, specifically setting forth the causes of such desire to withdraw.
        2. Congress shalt consider of such alleged grievances, and, on failure to redress or accommodate the same, to the satisfaction of the complaining State and of the Confederate States, shall arrange with such State an equitable division of the public property, and a peaceable withdrawal from the Confederation.
        3. But no State by withdrawing from this Confederation in the manner herein provided, nor in any other manner, shall be discharged or released from the obligation to pay a due proportion of the public debt existing at the time of such withdrawal; and such withdrawal shall, moreover, oblige the State withdrawing to account with the Confederate States for all expenditures made, or liabilities incurred by the Confederate States, in acquiring, securing, fortifying or defending the territory or jurisdiction of such
        State.

        Mr. Chesnut moved to amend the amendment of Mr. Hill by striking out the same and inserting in lieu thereof the following, to wit:

        The right of a State to secede from the Confederacy shall not be denied.
        And whenever any State, through a convention of its people, shall dissolve the connection between it and its confederates, it shall be the duty of the President to withdraw all forces from within the territorial limits of such State, and permit it peacefully to withdraw.

        According to previous order of the Congress, the consideration of the amendment and the amendment to the amendment was postponed and they were ordered to be printed.

        Confederate States of America. Congress. The Journals of the Congress of the Confederate States of America, 1861-1865, Washington: G.P.O., 1904-05. Volume 1, Sen. Doc. 234, 58th Congress, 1903-1905.

  5. Jeffry Burden February 21, 2014 / 1:56 pm

    Are you limiting this to creation of a mechanism for unilateral secession?

  6. Michael Rodgers February 21, 2014 / 2:53 pm

    I like your description “various interpretations of certain clauses.” Modern day secessionists tend to over-focus, even to the point of reading right past “powers not delegated to the United States by the Constitution” in the tenth amendment. There are a lot of powers delegated to the United States by the Constitution, not just those explicitly delegated in Article 1 Section 8.
    Their over-focus on “nor prohibited by it to the states” in the tenth amendment leads them to over-focus on Article 1 Section 10. And it strikes me quite strange that the secessionists want us all to read that section as if it had an invisible but super-meaningful header “As long as a state remains in the United States — but of course any state can secede at any time and for any reason and free itself on its own accord from this Constitution without any oversight whatsoever by any other state or by the federal government and, by so doing, must receive from the other states and the federal government immediate recognition as a completely separate independent nation — it must abide by these — and only these — prohibitions stated below.”
    With all the checks and balances and all the due processes and everything, I really don’t know how the secessionists would even word an amendment to their liking. The amendment would have to be very strongly worded, so strongly worded that no due process at all could be required after a state produced an ordinance of secession. After all, the secessionists want instantaneous recognition of secession without question, and they also want legally permissible secession at any time and for any reason, or even for no reason at all.
    But what if there was a coup in my state and secessionists took over and issued an ordinance, or perhaps the governor was a closet secessionist and suddenly issued an executive order, but the people didn’t really want it?

  7. Al Mackey February 21, 2014 / 3:46 pm

    I feel the need to point out the Supreme Court, in Texas v. White, said secession with consent of the other states is constitutional. It’s only unilateral secession, without the consent of the other states, which is unconstitutional. And it would most definitely take a constitutional amendment to make unilateral secession constitutional, since the very concept contradicts all the case law regarding the relations of the states to the Union.

    • Brooks D. Simpson February 21, 2014 / 4:16 pm

      I pointed this out last night. However, by that time the questioner had rather muddled secession, revolution, state, colony, commonwealth, and so on, with a purpose in mind that I was unable to discern …

  8. Charles Lovejoy February 21, 2014 / 5:06 pm

    “Why don’t advocates of secession propose a constitutional amendment explicitly defining secession as constitutional?” Simple, they really don’t want to seceded or hadn’t thought it through .It’s something today would not be realistic. If a state seceded they would have to start from scratch, a UN charter, no longer part of the US ,an accepted currency would have to be established, trade agreements and energy agreements would have to be negotiated with the nations around the world, that’s just the start. The world today is much more complex than in 1860.

    • Brooks D. Simpson February 21, 2014 / 5:14 pm

      If that’s true, then why do they continue to talk about it?

      • Charles Lovejoy February 21, 2014 / 5:40 pm

        One big problem I see is to many of these secessionist are conservative radio talk show educated.I truly don’t think they have set down and thought it all out.It’s one of those things that might sound impressive when spouting rhetoric but not realistically going happening. The conversations I have had on the subject with ones ranting about secession are Tea Party types and didn’t connect secession to the old Confederacy. Several I have talked to that supported secession didn’t have a clue what the Bretton Woods system was and how world currency worked and works. Currency on day one of secession would be a major concern for a new independent state on day one. These people are clueless, I don’t think they have an idea how or modern world works.

        • Brad Griffin February 21, 2014 / 9:04 pm

          I don’t know of anyone in the League of the South who listens to conservative talk radio.

    • Brad Griffin February 21, 2014 / 9:29 pm

      Why wouldn’t it be realistic?

      1.) The US engineered the secession of Panama from Colombia and fomented the secession of Kosovo from Serbia.

      2.) Eritrea seceded from Ethiopia. South Sudan, with the encouragement of the United States, seceded from Sudan.

      3.) Slovakia seceded from Czechoslovakia.

      4.) Yugoslavia has dissolved into Slovenia, Croatia, Montenegro, Macedonia, Bosnia, and Serbia.

      5.) Ireland seceded from Great Britain.

      6.) The USSR dissolved into Armenia, Azerbaijan, Belarus, Estonia, Georgia, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Moldova, Russia, Tajikistan, Turkmenistan, Ukraine and Uzbekistan.

      7.) Namibia is now independent from South Africa.

      8.) The US presided over the artificial division of Germany into West Germany, East Germany, and Austria.

      9.) The US has granted independence to the Marshall Islands and Micronesia, Puerto Rico, a US territory, has the option to become an independent country.

      10.) The US has recognized the independence of East Timor from Indonesia.

      11.) Vietnam and Korea were artificially divided during the Cold War into separate republics. The US fought the Vietnam War to preserve the independence of South Vietnam.

      12.) The US Navy has been used to separate Taiwan from mainland China. Taiwan represented “China” at the UN until 1971.

      13.) After the Second World War, the US pressured its European allies – the UK, France, Belgium, and the Netherlands – to give up their overseas empires while maintaining control of Puerto Rico and Hawaii.

      • Brad Griffin February 21, 2014 / 9:38 pm

        I forgot to mention the dissolution of India into India, Pakistan, and Bangladesh.

    • Brad Griffin February 21, 2014 / 9:48 pm

      The Bahamas, which gained its independence in 1973, has its own currency and central bank. It has a representative at the UN. 99 percent of its electricity is generated by imported oil. It is a member of CARICOM which was founded in 1973.

  9. Brooks D. Simpson February 21, 2014 / 5:50 pm

    In a most amusing moment, Connie Chastain confuses the Declaration of Independence with the Constitution. After all, if the Declaration of Independence was part of the Constitution, then Confederate heritage homophobes such as Connie would have problems with the phrase “all men are created equal,” because she clearly doesn’t believe that. Given that “Austin” (he of many sock puppets) and she claim that we are supposed to denounce such people as total idiots … well, consider it done.

    And why might “Austin” hold his fire on Connie? Because she be white?🙂

    • Al Mackey February 21, 2014 / 10:17 pm

      In my little sojourn over there I think I’ve demonstrated her mendacity, hypocrisy, and bigotry. My work is done and now time to shower. 🙂

    • Brooks D. Simpson February 23, 2014 / 7:51 pm

      Connie now claims that the Declaration of Independence transcends the Constitution … and that it provides for a right of secession. This suggests that she’s not really willing to deal with the basic founding documents of the United States. First, in wording her claim as she does, she makes it clear that there’s no right of secession to be found in the Constitution (as in a constitutional right of secession); second, Jefferson was defending a right of revolution, not secession.

      But no one expects Connie to understand these things.

      • Rob Baker February 24, 2014 / 10:24 am

        But no one expects Connie to understand these things.

        True statement. I love her new 10th Amendment argument regarding secession. It is incredible juvenile; something you might see on a SCV website somewhere.

        • Brooks D. Simpson February 24, 2014 / 12:53 pm

          Now, now … it’s the best she can do, although she now confuses “rights” and “powers.”

          The fact remains that Connie would rather continue her little rants on her blog than work for fundamental change. So long as that’s the case, a new secession movement is a joke. I offered a simple solution that she finds impossible to pursue.

          • Rob Baker February 24, 2014 / 1:59 pm

            I really don’t get how hard it is to understand how the Constitution functions for some people. Our constitution has never, from its ratification onward, worked on a literal reading. Washington became the first to use the “implied” meanings. Jefferson, the ardent strict constructionist, found implied meaning useful on several occasions. So why in the world sit there any argue that because the Constitution does not literally say something, that it is not admissible? I mean, how stupid.

          • Jimmy Dick February 24, 2014 / 4:36 pm

            This is an area where people seize an opportunity to present a point that falls well short of any contextual understanding of the Constitution. It says nothing about secession either allowing or disallowing. So it could be read to support either idea. When something is not mentioned in the Constitution we then to look to what the Founders thought about that concept. When we study secession we find the Founders were adamantly opposed to it repeatedly. Yet, when we bring that up to those who favor the secession isn’t in the Constitution, therefore it must be legal group, they continually ignore that overwhelming evidence and merely continue the same circular argument by parroting the same line over and over.

            That is just a complete and utter denial of history in favor of a ridiculed idea and a determined and deliberate lack of understanding Constitutional history or law.

          • Rob Baker February 24, 2014 / 5:07 pm

            My other favorite argument is,

            “The North (not the Union, the North) had no right to invade the South”

            Well, Constitutionally they did. The South engaged in unilateral secession, a form of rebellion. Congress has the power to put down insurrection and to protect federal property. As Mackey has demonstrated over and over again, the Federal government was in full possession of Ft. Sumter.

          • Brooks D. Simpson February 24, 2014 / 5:45 pm

            Connie is not exactly a great constitutional scholar, so we should not expect her to think like one. However, the republic remains safe in part because she confuses operating her blog with actual political activism.

      • Bob Huddleston February 24, 2014 / 4:18 pm

        The Confederate Founding Fathers were very careful to avoid the “R” word, even though the soldiers adopted it as their nickname. The secessionists argued legal secession because if they mentioned revolution against tyranny, the 40% of their population that were slaves might get the wrong idea.

        • Brooks D. Simpson February 24, 2014 / 4:51 pm

          This is one of the problems with Chastain’s effort to interpret the Constitution in light of the Declaration … that “all men are created equal” section tends to undermine not only the Confederacy but also her personal views about race, religion, and so on.

          But then I’ve already highlighted her inconsistencies before. Somehow, for all the space she devotes to me, this post escaped her attention. Wonder why.

          • Brad Griffin February 24, 2014 / 8:20 pm

            Jefferson had a lot to say about race including this:

            “Nothing is more certainly written in the book of fate than that these people [blacks] are to be free. Nor is it less certain that the two races, equally free, cannot live in the same government. Nature, habit, opinion has drawn indelible lines of distinction between them.”

          • Jimmy Dick February 25, 2014 / 8:06 am

            He also believed in strict construction regarding the Constitution, but quickly realized that idea was not going to work. While Jefferson had some great ideas, he was not always right. Obviously his thoughts on race have been proven to be wrong.

          • Rob Baker February 25, 2014 / 10:58 am

            Even more so given that current historiography suggests his relationship with Sally Hemmings was consensual and loving.

          • Brad Griffin February 25, 2014 / 4:08 pm

            In 1820, Jefferson was still writing about colonizing the blacks in Haiti:

            “My proposition would be that the holders should give up all born after a certain day, past, present, or to come, that these should be placed under the guardianship of the State, and sent at a proper age to S. Domingo. There they are willing to recieve [sic] them, and the shortness of the passage brings the deportation within the possible means of taxation aided by charitable contributions. In this I think Europe, which has forced this evil on us, and the Eastern states who have been it’s chief instruments of importation, would be bound to give largely.”

            In 1824, Jefferson was still excited about the possibilities of deportation, especially since Jean-Pierre Boyer was soliciting black immigrants from the United States:

            “St. Domingo has become independent, and with a population of that colour only; and if the public papers are to be credited, their Chief offers to pay their passage, to receive them as free citizens, and to provide them employment…I am aware that this subject involves some constitutional scruples…The separation of infants from their mothers, too, would produce some scruples of humanity. But this would be straining at a gnat, and swallowing a camel.”

          • Jimmy Dick February 25, 2014 / 8:05 pm

            Oh look, Haiti again.

        • John Foskett February 25, 2014 / 11:32 am

          Presumably they also avoided its R-word “simile’ Rebellion” because the Constitution strongly indicates that a rebellion can be jackhammered. The AWI, of course, was a ‘rebellion”, complicating things for folks who try to analogize their little 1861 frolic to the 1775-83 exercise. Hence the absurd, labored, nonsense in calling the AWI “secession”.

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