Does a state have the right to secede from the union? | Eastern North Carolina Now

    Repeal of the 17th Amendment --

    The 17th Amendment states:

    "The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures."

    1). The 17th Amendment altered the wording of Article I, Section 3, clause 1, which read: "The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six years, and each Senator Shall have one vote."
    2). Originally, each Senator was elected by his state's legislature to represent that state in the Senate.
    This was intended to protect each state's power within the federation established by the Constitution by having its own direct representation in the Congress.
    3). The amendment was adopted in 1913.
    4). The 17th Amendment was a slap in the face to the States and to States' rights.
    5). Texas Governor and Presidential hopeful Rick Perry is talking about repealing the 17th Amendment and also there is talk that the Tea Party will try to force this issue
Governor Rick Perry, Texas, struggles mightily with the conundrum of illegal immigration as a border state with the world's longest border with Mexico.
    James Madison thought that the States should be active participants in the Federal Government. He said: "Whenever power may be necessary for the national government, a certain portion must be necessarily left with the states, it is impossible for one power to pervade the extreme parts of the United States so as to carry equal justice to them. The state legislatures also ought to have some means of defending themselves against the encroachments of the national government. In every other department we have studiously endeavored to provide for its self-defense. Shall we leave the states alone un-provided with the means for this purpose? And what better means can be provided than by giving them some share in, or rather make them a constituent part of, the national government?"

    Since the enactment of the 17th Amendment, the states have been reduced from an equal l partner with the federal government to a common lobbyist, which has resulted with the loss of state sovereignty, loss of state rights, and a host of federal mandates some of which are funded and some which are not (requiring tremendous state resources the states don't have). Such mandates include the No Child Left Behind Act, Medicare/Medicaid, and Obamacare.

    The Repeal Amendment --

    The Repeal Amendment, sponsored by Senator Mike Enzi (R-WY) and Rep. Bob Bishop (R-UT) and introduced on May 15, 2011, would basically give states a veto over Washington. It is the brainchild of distinguished Georgetown Constitutional Law Professor Randy Barnett. The amendment states:

   "Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for the purpose that particularly describe the same provision or provisions of law or regulation to be appealed."

    The Amendment was inspired by Barnett's April 2009 article in the Wall Street Journal, which described Constitutional remedies for taking our country back. The Amendment was publicly proposed for the first time on September 15, 2010. Just two months later, it gained the support of prominent legislators in nine states: Virginia, Utah, New Jersey, Georgia, Texas, Minnesota, Florida, Indiana, and South Carolina. Virginia has led the way with support from Governor McDonnell, Attorney General Ken Cuccinelli, House of Delegates Speaker Bill Howell, and Lieutenant Governor/Senate President Bill Bolling, in addition to US Representative Eric Cantor.

    Rep. Cantor explains the need for the Repeal Amendment: "Cantor explains the need for the Repeal Amendment: "Washington has grown far too large and has become far too intrusive, reaching into nearly every aspect of our lives. In just the past few years, Washington has assumed more control over our economy and the private sector through excessive regulations and unprecedented mandates. Our liberty and freedom has lessened as the size and scope of the federal government has exploded. Massive expenditures like the stimulus, unconstitutional mandates like the takeover of health care, and intrusions into the private sector like the auto-bailouts have threatened the very core of the American free market.

    Since the Repeal Amendment has been proposed, it has gotten a lot of attention. On November 23rd, Professor Barnett and Virginia House Speaker Howell went on Fox Business News to discuss the proposal with Fox News' Senior Legal Analyst, Judge Andrew Napolitano. Napolitano was ecstatic about the idea. He said, "This sounds almost too good to be true, if it could happen. We wouldn't have unfunded mandates; the Tenth Amendment would reign supreme; the states would be sovereign within their own borders..." But he also shared some concerns, one of them being the difficulty in adding a constitutional amendment (which was the very intent of our Founders in adding Article V).

    According to Article V of the U.S. Constitution, there are two ways it can be accomplished:

    1). Both Houses of Congress agree to propose an Amendment with a two-thirds majority vote.
    2). Two-thirds of state legislatures (34 states) pass a resolution to call for an Amendment Convention to vote on the amendment.

    In both cases, the amendment must be ratified by three-fourths of the state legislatures (= 38 states).

    Some of Napolitano's other concerns include the uncertain nature of state Amendment Conventions and the willingness of Congress to vote against its own interests. In his interview, the Judge asked: "If it turns out the states are successful in suing for an Amendment Convention, would it become a 'runaway Convention'?" (by this, he means that once the states call such a convention, nothing is off the table. They can discuss anything). He also asked whether Congress in fact would bring the Amendment to the floor of Congress being that it so boldly confronts their power.

    In addressing the concern about Congress' potential hostility, Delegate Howell responded that if such an amendment is requested by two-thirds of the states, Congress has no choice in the matter. He acknowledged the influence that Tea Party groups have had on the attitudes of many in Congress, especially regarding fiscal conservatism and limited government.

    Supporters of the Amendment Supporters are optimistic, saying the time has come for States to take back the power Congress has increasingly usurped. And maybe, just maybe, they are right.

    QUESTION: What else can the States do?

    --> Nullification and peaceful secession are the only true means of returning to a system of government that respects rather than destroys individual liberty. A return to an era of strong sovereign states is the answer to reigning in the size and control of the federal government.

    A 2008 Zogby International poll revealed that 22% of Americans believed that "any state or region has the right to peaceably secede and become an independent republic." Some have argued for a constitutional right of secession and others have claimed for recognition of a natural right of revolution. Adopting a Constitutional amendment at this point in our history might seem unlikely because most citizens, through the indoctrination they receive in the public school system, believe the Civil War decided the issue of secession once and for all. (it will not be tolerated). In White v. Texas, the Supreme Court held that unilateral secession is not allowed but noted that revolution or consent of the states could lead to a successful secession.

    First, let's be clear about what the Constitution says or doesn't say. The power to "negate secession" or "prevent secession" is not a power, either expressly or implicitly, delegated to the federal government. It is not a right prohibited to the States. Therefore, under the 10th Amendment, States retain the right to secede and sever their bonds with other states to be governed under the dictates of the US Constitution and the federal government. Questions of fundamental rights and constitutional law cannot be settled on a battlefield. The only thing that the Civil War proved was that the stronger Army defeated the weaker Army and exercised its spoils of victory to violate the Constitution and the natural rights of the defeated States.

    Let's review what happened with the Civil War - with a broad overview . On May 27, 1861, the army of the United States of America invaded the sovereign state of Virginia, which had submitted its Declaration of Secession earlier that month, in a forceful effort to "negate" that secession.

    Four years later, and with 620,000 Americans slaughtered, the United States defeated the Confederate States of America, forced the states back into the Union, and thus, negated the secession their secession. The government forced a series of "conditions" on the defeated states before they would be formally re-admitted to the Union, including ratification of the 14th Amendments, establishment of new state constitutions, execution of oaths of allegiance to the Union, disqualification of former Confederate officials from office, and the guaranteeing black males the right to vote. President Andrew Johnson saw the Reconstruction Act as "absolute despotism," a "bill of attainder against 9,000,000 people," and vetoed it on March 2, 1867. [Bill of Attainder = A legislative act that singles out an individual or group for punishment without a trial]. In his veto message, he stated that "such a power had not been wielded by any Monarch in England for more than five hundred years."

    The Civil War ended the immoral institution of slavery, but it left the South in economic ruins, set the stage for 12 years of oppressive military rule, and left a segment of our country still suffering from the bitter experience of trying to exert their independence. While slavery was clearly on Lincoln's mind, especially when he figured out he could use it to energize the abolitionist movement and incite slaves to fight for their freedom and therefore further the North's position in the War, he had very little concern and respect for other fundamental liberties - the ones our Founders specifically listed in the Declaration of Independence as being secure in our new nation. Freedom against unlawful detention and the right of habeas corpus and freedom from government confiscation of property are just a few. Of course Lincoln showed the most callous disregard of all for the guarantee "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..."

    [See Ex parte Milligan (1866) a case challenging one of Lincoln's unlawful detentions. Lambdin Milligan and four others were accused of planning to steal Union weapons and invade a prisoner-of-war camp containing Confederate soldiers. They hoped that once the first prisoner of war camp was liberated, the liberated soldiers would take up arms and help free other Confederate soldiers from their prisoner camps. The plan was leaked and Milligan and the others were charged, found guilty, and sentenced to hang by a military court in 1864. President Lincoln enacted a wartime statute suspending the privilege of a writ of habeas corpus in those cases where military, naval, and civil officers of the United States 'hold persons in their custody either as prisoners of war, spies, or aiders and abettors of the enemy, . ." Milligan, thus, was unable to challenge his detention and sentence. Luckily, the execution date was not set until May 1865 and so once the War was over, Milligan was given a chance to challenge his denial of habeas corpus.

    Although the Court held that Congress has the power to pass severe measures in time of war, this particular instance was unconstitutional. Chief Justice Salmon Chase, writing for the majority, wrote: "Where peace exists the laws of peace must prevail. What we do maintain is, that when the nation is involved in war, and some portions of the country are invaded, and all are exposed to invasion, it is within the power of Congress to determine in what states or district such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offences against the discipline or security of the army or against the public safety." In the end, the Court held that the prohibition against unlawful detention by the US Constitution is such a valued fundamental right and one which has the greatest potential to be abused in wartime, that such trials of civilians by presidentially-created military commissions are unconstitutional. Martial law cannot exist where the civil courts are operating. In Indiana (where Milligan and the others were arrested), as well as in the rest of the Northern, the US Constitution was still upheld and recognized as supreme law and so civil courts were operating.

    As a result of Lincoln's suspension of habeas corpus and the resulting policy of arbitrary arrests, an estimated 13,000 civilians were seized and confined on the suspicion of disloyalty or of being sympathetic to the Southern cause]

    The Civil War resulted in a tremendous expansion of the size and power of the federal government. It gave us our first federal conscription law, and our first progressive income tax (to pay for the debt created by the war), for example. It gave us the 14th Amendment (which would be used to neuter the 10th Amendment) and a whole host of Civil War legislation. Social reform was right down the road. In his book Our Enemy (1950), Albert Jay Nock wrote: "The doctrine of 'reserved powers' was contrived ex post facto (after the fact) as justification for his acts, but as far as the intent of the Constitution is concerned, it was obviously pure invention, In fact, a very good case could be made out for the assertion that Lincoln's acts resulted in a permanent radical change in the entire system of constitutional 'interpretation' - that since his time 'interpretations' have not been interpretations of the Constitution, but merely of public policy.... A strict constructionist might indeed say that the Constitution died in 1861, and one would have to scratch one's head pretty diligently to refute him."

    Since the Civil War, there have been two main legal developments which might appear to impact secession: (1) the amendment of several state constitutions to prohibit secession and (2) the passage of the 14th Amendment. While under military occupation and control, the states of Virginia, North Carolina, South Carolina, Florida, Mississippi, and Arkansas each established new state constitutions which contain a clause prohibiting secession. Once these states did so, federal military troops were withdrawn.

    Legally, the clauses prohibiting secession cannot serve to invalidate a state's right to secede from the Union. There are several theories to support his:

    (i) First, the clauses were added under duress. They were forced as a means of punishment and submission. Duress is a valid and recognized defense to contract enforcement. This fundamental principle of contract law states that a contract made under duress is voidable at the election of the aggrieved party.

    (ii) Second of all, no contract can deny an inherent right of self-preservation. For example, no contract can deny a person his right to seek any available treatment for a life-threatening illness or condition.

    (iii) These states mentioned above have the opportunity at any time to amend their constitutions and eliminate the secession clause. If they choose not to do so, it doesn't mean they are acknowledging that they no longer have the "right." It simply means that they are not choosing to "exercise" that right at the present time. The right still exists. It always has and always will.

    (iv) All states have equal rights in the Union. The fact that other states have not relinquished their right to secede means that the Southern states are also recognized as having that right.

    The 14th Amendment shouldn't pose a problem since a State that secedes from the United States has no duty to recognize the US Constitution. The problem might come in with Section 1 which reads: "...... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..." (The Privileges and Immunity Clause of the 14th Amendment). If we were to ever have another President like Abraham Lincoln, he might use this Clause to re-establish the rights of the people to the privilege and immunities of the United States.

   Chapters One, Two, Three and Four are complete. To be continued in Future Chapters.

    Diane Rufino has her own blog For Love of God and Country. Come and visit her. She'd love your company.