Secession Today

There has been a lot of talk about secession and petitions seeking federal consent to secession.  This is so much venting, but Eugene Volokh, over at the Volokh Conspiracy,  has a post about the topic, to which I wish to respond.  Eugene asks:

1) "Is It a Good Idea for Some States to Secede from the U.S.?"  He thinks not; I think this is far more debatable.  Texas or California have massive economies that would enable them to exist independently. Arkansas, not so much.  From the perspective of an individual state, secession might make sense (although each new nation would have to assume the burden of currently shared expenses, such as natinal defense, and the efficacy of such individual defense forces would likely be less than the current unified national defense).  From the standpoint of the nation as a whole, it's a bad idea, as Eugene contends.  But the relevant question is what each state would gain or lose by secession.  On that view, the answer is debatable and variable.  This is not a call for secession, or even an endorsement of the idea; it's a recognition that individual components of a federal union may have more to gain or lose by secession. 

2) "Do States Have a Legal Right to Secede on Demand?" Emphatically no.  The idea of the nation as a voluntary compact among independent states died with the Civil War, and Texas v. White is clear precedent rejecting any right of secession. 

3) "Is It Legally Possible for States to Secede?" In Texas v. White, the Court stated: "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 resulting question is whether secession can be accomplished by ordinary legislation permitting withdrawal, or whether it requires constitutional amendment.  The case for ordinary legislation inheres by implication from Art I, s. 10, which gives Congress power to consent to foreign compacts, and Art. IV, s.3, which empowers Congress to expand the Union and gives Congress a veto over reconfiguration of states.  If Congress may bless foreign compacts of a state, one such compact might be Texas or California secession coupled with the state joining Mexico as a state.  There is no substantive difference between that and naked secession.  The Art IV veto over state reconfiguration is akin to blessing a state's voluntary decision to withdraw.  But perhaps Texas v. White states a rule from which Congress may not deviate, so amendment would be necessary.  None of this will happen, so it's academic musing.  (But I also thought the Soviet  Union would not break up.)

4) "Is It Treason for People to Call for Secession?" Not even close, absent some actual conflict with a foreign power to which calls for secession might be regarded as giving aid and comfort to the enemy.  What is happening is that people are exercising their First Amendment to "petition the Government for a redress of grievances."

5) "May People Who Call for Secession Be Deported?"  I assume this question is directed at citizens or lawful resident aliens.  Of course not.  This is protected expression and, in any case, the United States cannot strip citizens involuntarily of their citizenship.  Resident aliens may not be deported except for commission of certain crimes.  Exercising one's speech rights is not a crime.  (Who would have thought it necessary to say this?)  

Secession is not going to happen, absent some dire unforeseen circumstances.  But because I post on a blog that is the "Go-To Source for Breaking News About Confederate Monuments," I thought I had an obligation to speak out on secession. 

Comments

[Ugg Boot Sale]

Very good, very interesting, and I really like

[Jack]

Lawful permanent residents may be deported at any time for any reason Congress deems appropriate, including for exercizing First Amendment rights, Galvan v. Press, 347 U.S. 522 (1954), or because they are members of an undesirable race. Fong Yue Ting v. United States, 149 U.S. 698 (1893). So I am fairly confident that they could be deported for advocating secession. Hard to imagine why they would, though.

[Sick of Stupidity]

I'm like this, if these folks who want secession to happen is so upset, why don't they just leave the country? Sure, everybody has a right to freedom of speech, but to threaten to secede just because the person you voted for didn't get into the White House? Seriously? If that was the case, secession should have been spoken of back in 2000 & 2004 when things were really bad. I wish these people who signed this joke of a petition would grow up, get over the fact that their man lost, and everybody put their heads together so we can all figure out solutions to the country's problems. That's not moving forward people, that's really kicking things in reverse.

[Dean]

The essay The Secession Amendment can be purchased on Amazon as an ebook. If you are serious about wanting to secede, this is a serious discussion on how to do it. Signing a petition is only a form of protest.

[CouldBe]

There's no right to secession in the text per the Court. Why's that a game-changer? Do my rights issue from a text? Certainly my bodily power does not issue from a text. My ability to move myself does not issue from a text. My ability to reason does not issue from a text. The Civil War wasn't a couple a pages on one side versus a couple of pages on the other, and let's see who crumples first. If rights are just power, there's always a right to secession. If rights are not just power, but are some species of right-thinking, compelled by the rule of reason or compelled by the structure of logic and premises chosen, then I might have a right to secede that judges or presidents or military leaders do not recognize because they are dishonest or stupid. In any event, should some state come to demand it in seriousness, I have no doubt that Texas v White will not decide the matter.