Secession is not illegal, it is the duty of those who seek to reacquire independence and liberty

Some Texas Republicans have said has that Texans should begin discussing among themselves, and with like-minded states, a plan for secession from the United States. (1) There is no reason that this suggestion cannot be acted upon.

There is no binding U.S. law and only one American historical document that even suggests that secession is forbidden. Indeed, the U.S. civil war proved only one thing; namely, that the South’s war for independence was defeated by northern forces. Those who think that the defeat of the Confederacy signaled the end of future attempts to secede – that is, to seek security from tyranny and restore liberty and law – is simply wrong or illiterate.

The only U.S. document that suggests that America’s Union is a permanent and unbreakable entity is found in America’s first Constitution, “The Articles of Confederation and Perpetual Union”, which came into force on 1 March 1781. As its title indicates, the Articles announced that its contents were meant to ensure a “perpetual union” of the states. But it clearly stated – by its silence on the issue – that those goals were an aspiration, as the Articles gave the new national government no power, save legislative procedures and the eloquence of its leaders, to prevent secession. On this issue the Articles said:

“Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.” (1)

The only pertinent and legitimate guidance on the secession issue for those drafting the Articles was located in the Declaration of Independence, which strongly urged great patience on Americans before acting to change existing forms of government. But it also urged the citizenry to act to change governments, when the conduct of the existing institution became intolerably tyrannical. This guidance, of course, was followed, between 1775 and 1783, by the 13 colonies when they chose to fight a war that, when won, allowed them to successfully secede from the British Empire.

In 1787-1788, astoundingly, the Framers of the U.S. Constitution dropped the Articles’ phrase declaring “perpetual union” and so left their new document silent about how the Union should be considered. Was the Union a goal in itself, or was it meant to be the means to the end that the Constitution described as a “more perfect Union”? Nowhere in the constitution is there a prohibition against secession, and, until 1861, the prospect of disunion arose on multiple occasions.

In 1814, for example, the Hartford Convention was arranged by Federalist political leaders to discuss plans for the New England States – their economies shattered by the War of 1812 — to secede from the Union and rejoin the British Empire. Then in 1832, South Carolina threatened to “nullify” federal tariff law, and, in essence becoming a de facto nation. The South Carolinians had some support elsewhere in the south, but before it could be strengthened and broadened, the crisis was solved by a combination of actions that promised to make the nation’s tariff laws less economically onerous on the South, and saw President Andrew Jackson promise to come down to South Carolina and hang each of the Nullifiers. Americans of all parties knew that disregarding Jackson’s words and pledges always yielded disaster, and many of South Carolina’s leaders buckled and left the Nullifiers before Jackson and his supply train of rope could arrive in Charleston.

In each of these cases, the Constitution provided no guidance for maintaining the Union, and the era’s face-offs on the issue were settled politically, although Jackson’s promise of hangings surely sped South Carolina’s recognition of the virtue of political accommodation. Between 1832 and 1861, the issue of secession was sharply debated in the Congress, newspapers, and state legislatures with some frequency, especially when tariffs, territorial expansion, and the admission of new states — slave or free? — to the Union were at issue.

When the Southern States seceded in 1861, they did not give a hoot-or-a-holler about what the Northern states did in the north, as long as they left the new Confederate republic alone. Jefferson Davis’s government demanded no northern territory; did not insist northern school kids be taught the glories of transgenderism; sent no rich-but-stupid college kids to burn down neighborhoods, kill innocents, and destroy small businesses; and did not demand abolishing Christianity from the public square. Neither did it insist that the South’s part in the Union’s history be deleted from books, of that the symbols of its part in that history be destroyed. Davis did not even demand that the mad terrorists of the north – then called Abolitionists – be silenced.

No, the Confederacy simply demanded to leave the Union, and thereafter be left alone to secure its own independence and sovereignty, and manage its territory, society, and economy as it saw fit. Yes, Southern leaders feared that Lincoln might try to end slavery, but this was – in 1861 – an overwrought fear as slavery was protected by the Constitution, and there were very, very, few Americans – north or south — who would have been willing to fight a civil war to free slaves. The South sought to leave the Union peacefully and form an independent republic, but Davis displayed terrible judgment by attacking Fort Sumter, providing Lincoln justification for war, and so America had a civil war in which the North meant to – and did — force the southern states to remain in the Union.

In the terribly bloody war of 1861-1865 only one issue was definitively settled: The South lost the war and so did not achieve its independence. The precedent set by the war was not the illegality of secession — although Justice Scalia much later said it did, showing even a genius can say a foolish thing (3)– but rather that secessionists had to defeat those refusing to let them depart or find themselves smashed to hell militarily and economically and then be dragooned back into the Union.

The war ended the threat of disunion for the moment, but the Northern victory did nothing to make the Union “perpetual”, as the Articles of Confederation said in 1781. Perhaps if Lincoln had lived through his second term, the careful lawyer in him may have worked for a Constitutional amendment that declared the Union permanent and made secession unconstitutional. But Lincoln did not live through the term, and the Constitution was not amended.

In 1869, the Supreme Court, in accordance with the long, strong current of fecklessness that runs through its history, took its crack at making secession unconstitutional in a case called Texas v. White. In that case the Court ruled unilateral secession was unconstitutional, but added that revolution or consent of the other states might allow a successful secession. (4) Gee, no kidding? Even for the Supreme Court, this dearth of commonsense seems surprising. One would have hoped that at least one of the judges would have explained to the others how mad it would be for any state to have joined a union from which it could not try to exit if that Union — as soon may be the case — came to be ruled by a tyranny. That of course, is a true violation of the Constitution, but its is one that today’s nine-blind mice refuse to recognize.

The bottom line, therefore, is that secession remains a perfectly acceptable aspiration, but, to make secession good, the states remaining in the Union would have to acquiesce and leave the secessionists go in peace. If such acquiescence is not forthcoming, the secessionists would have to fight for their independence. It is both ahistorical and silly to claim that secession is forbidden by U.S. law, the founding documents, or the Founders’ papers. There is nothing in these documents, nor in the Bible, nor in natural law, nor in simple commonsense, that binds any American person to live peacefully as a good citizen in states that are governed by a national government that is tyrannical, and Biden’s publicly-stated plans to destroy the 1^st and 2^nd Amendments clearly display tyrannical intent. Hence, secession is a pertinent issue at the moment.

Indeed, if America’s founding documents show anything, they show that it is the duty of every American to seek to overthrow any government they have found to be tyrannical, and that that task may well require risking life and limb in a desperate war to leave the Union and establish a new, sovereign, and independent republic. Such a war might be won or lost, but the effort to fight and win such a struggle is surely the citizenry’s sacred obligation. The only shame and crime in the concept of secession, lies with those citizens who do not seek to secede when a tyranny rules their land.

Endnotes:

1. See here and here.
2. The full text of the Articles of Confederation.
3. Justice Scalia.
4. The text of the Court’s decision in Texas v. White.
5. Article originally appeared in Non-Intervention2.

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