Secession: Does a State Have a Right to Secede From the Union? Part I | Eastern North Carolina Now

    Publisher's note: Diane Rufino has submitted for publication a well developed article regarding secession, which we will publish in chapters. Here we initiate the first installment. The second installment can be found here.

Updated from the original article of September 2011

    Last year, I taught classes on the Constitution, Our Founding Fathers, Our Founding Principles, The Federal Court System, The Supreme Court, and Judicial Activism. I was struck by how many people want to learn such topics but just don't know where to go to be educated or how to trust that they will be taught the right stuff. But one question that came up almost every class period and by every group was this: "Do the states have the right to secede." Well, there were several people at the program who were instructors, and three of us being attorneys (me being the least experienced, and especially with a background in patents). Each instructor who was asked the question gave a different answer. I didn't know, so that was my answer, although I explained what John Locke would have said and what the answer would be if you look at the Constitution as a Social Contract. I also know what our Founders would have said, as clearly written in the Declaration of Independence.
Our Founding Fathers signing the Declaration of Independence at Independence Hall in Philadelphia, 1776: Above.
    So, seeing that people were generally interested in the question of secession and now with the fact that almost all 50 states have filed petitions requesting a peaceful secession from the Union (as of Nov. 14, it is reported that 47 states have filed such petitions with the White House - see later), I thought I would review that topic in as much detail as I can. Another reason I think the review is timely and important is because the topic of secession is one that necessarily includes the matter of States' rights and State sovereignty and those issues are very important right now, especially seeing that our government is becoming the very powerful, concentrated institution that our Founders and the States tried so hard to prevent. It is "working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction until all shall be usurped from the States, and the government of all be consolidated into one."

    After a review of our founding principles and some research, I felt fairly confident to write this review. This article will talk about the moral and legal basis of secession - which is addressed pointedly in the Declaration of Independence under the section which lists the sovereign rights held by the individual and which is NOT addressed anywhere in the Constitution. Thus, the right is left to the People and the States, under the 9th and 10th Amendments, respectively. Even more fundamentally, the right of secession comes from the "Compact Theory of Government," the doctrine that holds members of society together in a government system and gives it a legal basis.

    That compact theory is a term that was used commonly in the days of our founding, up until the time of the Civil War. It was addressed in the Declaration (governments "derive their just powers from the consent of the governed"), in the Debates in the Constitutional Convention of 1787, in the various state ratification conventions, and in the various articles and declarations of secession adopted by the 11 southern states. In fact, if you read the North Carolina Ratifying Convention notes, the approximately 300 delegates specifically take note of certain fundamental government principles before deliberating on the Constitution drafted in Philadelphia. The first principle is the Compact Theory of government. Our Declaration, while defining our nation's ideals, is actually a secessionist document. It makes the case for the right of the American colonies to sever its political bonds with Great Britain. And what theory did our Founding Fathers use to support their case? The Compact Theory ("Whenever any form of government becomes destructive of these ends" - ie, it's obligation to protect the rights of the people - "it is the right of the people to alter or abolish it, and to institute new government.") Furthermore, the states' rights' doctrines of Nullification and Interposition, articulated by Thomas Jefferson and James Madison, respectively, are based on the compact theory. as well as on our federal system (10th Amendment) and the Supremacy Clause.

    In this article, after addressing the basis for secession, I will go into detail about the Civil War to highlight Lincoln's great misconceptions of the Constitution and our underlying government principles, which, as we know, took us down a dark and bloody path...(the abolition of slavery aside). It is important to make this critical analysis because the only case decided by the Supreme Court on the issue of secession - Texas v. White (1869) - flows intimately from Lincoln's administration. His misconceptions profoundly influenced the Chief Justice, Salmon Chase, who wrote that decision. Chase never even went to law school. He received his legal education under the guidance of a politician, US Attorney General William Wirt! Lincoln was good friends with Chase, a Senator from Ohio and a fellow Whig. With the formation of the new Republican Party and the election of 1860, Chase threw his support for Lincoln. In return, Lincoln appointed him as his Treasury Secretary (1861-64). Chase held that cabinet position throughout the Civil War and was indoctrinated with Lincoln's view of secession. In 1864 when Chief Justice Roger Taney passed away, President Lincoln nominated Salmon Chase to the Supreme Court to replace him. Is it any wonder that the Court's decision would perfectly reflect Lincoln's views (while having no basis in constitutional interpretation - which is the function of the Court).

    When we think of secession, we are almost programmed to think about slavery, the Confederacy, and the Civil War. But that wasn't the only time American states rose up in secession. But it was the only time it was unsuccessful. The first time the states - or colonies - seceded was in 1776 when they declared their separation from Great Britain with the Declaration of Independence. Again, the Declaration was a secessionist document. We dissolved our bonds of government with the King and Parliament. "We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. -- And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor."

    In the Civil War, the decision was made to sever relations with fellow states. There was a degree of animosity towards fellow states who the southern states felt were actively hostile toward them. Currently, some think of such a decision not out of any animosity to fellow states, as it was prior to the Civil War, but as the only way to sever the relationship and dependency on the federal government.

    The Southern states seceded in 1860-61 essentially because of slavery. If it weren't for the antagonism between the North and South over the issue of slavery, the bigger issue of States' rights would not have asserted. Slavery was indeed an immoral and unjust institution. It is sad to think that people can treat fellow human beings as nothing more than property. But it was the bigger issue of State's rights that we must consider when we examine the Southern States' position with respect to secession and then the response by President Lincoln. In particular, we are talking about the sovereign rights of a state - the right of self-determination, self-protection, and the right to control its destiny. These are all fundamental rights belonging to a sovereign.... All sovereigns. For those of us who study the Bible, we know God is sovereign. He has complete control. We talk about sovereign nations. This means there are powers that a nation has, as a nation, to govern itself properly and protect its borders and people. As we all know, our country is based on individual sovereignty, where powers have been delegated specifically from the individual to the government for it to run the Union properly. That is our Constitution in a nutshell. As the Declaration lays out, our nation is founded - and grounded - on the notion that individuals are the real sovereigns. They are sovereigns in themselves, which is a "self-evident truth" (meaning that no government has to explain this; nature has made it so). As such, individuals have the "unalienable rights to Life, Liberty, and the Pursuit of Happiness." And thus we see the great explanation given by Thomas Jefferson in the second paragraph of the Declaration of Independence of our fundamental rights and our foundation of government:

    "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 to 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 affect their safety and happiness."

    The Declaration gave the colonies a reason to fight the Revolutionary War for their independence. The Declaration gave the States a reason to form a limited and federal government. It is the reason why our Founders and the States placed such an emphasis on the Compact Theory.

    Back in 1860, the states still remembered why they fought for their independence from Britain and why they joined together in a Union (as Ben Franklin advised, for mutual benefit - "Join or Die"). They joined for security and on the basis that each state would be on equal footing. They would enjoy the protections and benefits of the Constitution - EQUALLY. The issue of slavery aside, the Southern States dissolved their association with the Northern States because the association had become hostile and had become destructive of the very reasons they joined together in the first place. They seceded for the same right of self-determination and self-government that our earlier Americans asserted for our independence from Great Britain.

    In Lincoln's mind, he was preserving the Union, but the reality is that he declared war - a bloody, costly war - on a people who peacefully, legally, and perhaps rightfully severed relations with a government that had become hostile to them and their interests, and no longer served them equally or fairly.

    I am a Northerner. And I don't apologize for reaching that conclusion about Lincoln's decision to invade the South. Growing up in the North, we were taught that Abraham Lincoln was the greatest President we ever had. He saved the Union and freed the slaves. We were taught that the South was wrong and brought the Civil War on themselves. We were taught that Lincoln was great because of his determination to preserve the Union at all costs. As mentioned earlier, I did some research in preparing for this review, and I'm glad I did. I certainly learned a lot. I learned that much of what I was taught in school was wrong and really just the government's position on the subject. The adoption of Lincoln's stance on saving the Union and abolishing slavery is clearly the position the government wishes to emphasize with our children. I wish schools could be more intellectually honest and allow the full discussion on the issues involved in secession and the Civil War. I think it's a shame that children indoctrinated in the public school system are so ill-equipped to appreciate the values and principles on which our country and government are based and for the most part, end up going through their entire life remembering the limited "talking points" on history and social studies that they learn in school.

    In preparing to write this review, I shared what I learned with my husband, who is also a Northerner. Even after hours of discussion and debate, he still believes that Lincoln was justified in invading the South. He believes that slavery needed to be ended and if the South wasn't willing to do it, then the North had every reason to (under the Declaration of Independence). He respects Lincoln for having the courage to do that. In his mind, the ends justified the means.

    I guess you can say that we have a House divided at home now.

    Personally, when referring to matters of liberty and the Constitution, I find it offensive to hear people use terms such as "the ends justified the means." It means that we are compromising on core principles. It simply means they don't value the rule of law as laid down by our Founders. The laws are supposed to protect us equally and under all circumstances - especially in trying times. FDR had that mentality of "the ends justify the means" (and we had the internment of Japanese citizens and something most Americans don't know - the seeds of the "enemy combatant" legal fiction that now allows the government to go after US citizens). Lincoln had that mentality (and we had the suspension of habeas corpus for American citizens and the disastrous precedent that our government can put its own survival over the interests of the states and the People - that it doesn't have to observe or value the sovereign rights of citizens or states as laid out in the Declaration to "alter or abolish" their government, or at the very least to peacefully dissolve their political bonds so they can govern themselves more appropriately). Even Teddy Roosevelt had that mentality. And most of all, Barack Obama embraces this mentality (retribution and new social order justify the fundamental transformation of our government, even though the process of altering our Constitution is clear). Each president who adopts that mentality - and puts ambition over protections provided in the Constitution - perverts a fundamental principle of law upon which our country was founded.

    Martin Niemoller, a German Pastor who fell out of favor with Adolf Hitler and was imprisoned at the Dachau concentration camp for several years, wrote:

    "First they came for the Socialists, and I did not speak out -- Because I was not a Socialist.
    Then they came for the Trade Unionists, and I did not speak out - Because I was not a Trade Unionist.
    Then they came for the Jews, and I did not speak out - Because I was not a Jew.
    Then they came for me -- and there was no one left to speak for me."

    As my priest once said: "You can't cherry pick what you want to believe in or not. You have to stand up for the whole package." (He was talking about those who claim to be Christians but don't want to acknowledge that abortion and the destruction of a fetus is against God's law). Liberty is a "whole package." There are many elements to it and to pervert one aspect is to diminish its over-all worth.

    One day you'll wish you took the time to stand up for liberty, even in if it didn't concern you personally at the time. As John Adams said in 1775: "A Constitution of Government once changed from Freedom, can never be restored. Liberty, once lost, is lost forever."

    Just recently, the residents of all 50 states have filed petitions with the White House requesting permission for their states to peacefully secede from the Union and to establish a new government. The movement began on November 7, the day after the election, when Louisiana residents filed the first petition. They represent people who are fed up and who feed disenfranchised by their government and they want to exercise their rights under the Declaration of Independence to dissolve their bonds with government and establish their own, new government. Since that date, the remaining 49 states have joined in, with Vermont, Maine, and Washington being the last to file.

    [For more info, see: http://dailycaller.com/2012/11/13/petitions-seeking-white-house-approval-to-secede-now-come-from-47-states/ and http://freedomoutpost.com/2012/11/secession-movement-sweeps-all-50-states/ and http://www.wnd.com/2012/11/now-many-states-want-to-secede-from-u-s/ ]

    The Louisiana petition, which served as a pattern for many of the new states, simply reads: "We petition the Obama administration to: Peacefully grant the State of Louisiana to withdraw from the United States of America and create its own NEW government".... followed by two clauses from the Declaration of Independence. The Texas petition was much more creative. Texas articulated its argument for secession this way: "The Texas petition explains itself this way: "The U.S. continues to suffer economic difficulties stemming from the federal government's neglect to reform domestic and foreign spending. The citizens of the U.S. suffer from blatant abuses of their rights such as the NDAA, the TSA, etc. Given that the state of Texas maintains a balanced budget and is the 15th largest economy in the world, it is practically feasible for Texas to withdraw from the union, and to do so would protect its citizens' standard of living and re-secure their rights and liberties in accordance with the original ideas and beliefs of our Founding Fathers, which are no longer being reflected by the federal government." [https://petitions.whitehouse.gov/]

    Of course we know how the White House will respond to those petitions: "There is no right of a state to secede from the Union." But we won't buy it. The current administration might even respond with an Executive Order, making preparations to establish martial law should the states get any more serious than a petition on the White House government site. Glen Beck thinks that it is an insane idea to file such a petition with the White House. "Now how do you think that's going to work out?" Beck asked on his radio show. "I mean, how dumb do you have to be? Really? You're putting your name on a list that goes directly to the White House, and you're putting your name on a list and saying, 'yeah I think we should secede, I think there should be a Civil War.'"

    As will be discussed below, the states don't need to ask permission from the federal government when they wish to dissolve their political bonds. The creators do not have to ask their creation for permission.

    I'm not analyzing the reasons for the petitions in this article, but I would love for that discussion to follow. I imagine that part of the reason is the current economic situation and the economic oppression and inherent unfairness that comes from over regulation and taxation. I also imagine that other reasons would be very similar to the situation between the colonies and King George prior to 1773. Many of 27 reasons listed by Jefferson as a "history of injuries and usurpations" of the rights held by the colonists by King George mirror the same "usurpations" by our very own government.

    Ron Paul teaches that secession is a very American principle. As he says: "For those who say secession is treasonous or has been settled by the Civil War, then I say 'You don't know your history.'" In a short video that he put out in the wake of the secession petitions, Dr. Paul spoke:

    "All the states that entered the Union believed they had a right to secede. In fact, part of New England wanted to secede very early on and no one complained. Thomas Jefferson and Patrick Henry supported the right of secession and Henry even suggested that Virginia leave the Union.

    It is very American to talk about secession. It is very much an American principle. What about all the strong endorsements we have given over the past decade or two to those republics which seceded from the Soviet Union. We were delighted for them. We never said 'No, they don't have the right to do that.' We never said it was treacherous. And President Woodrow Wilson dragged us into World War I because he argued that e every country ought to have the right of self-determination. Why do we think differently when it comes to our country?

    Secession is a good principle. Just think of all the benefits that would have come the past 230 years or so if the principle had been more popular. The government would have been restrained not to overburden the states with too much federal rules and regulations. But since the Civil War, the government has grown by leaps and bounds and we have indeed suffered the consequences.

    We came together voluntarily and we should be able to separate voluntarily. You know, it's a shame that for so long now we've been indoctrinated with the Pledge of Allegiance - "One Nation indivisible..." Most people don't know who wrote the pledge. It was Francis Bellamy who wrote it in 1892. Bellamy was an avowed socialist who wanted to put the concept of indivisibility into the pledge to the flag.

    I think we need a discussion about secession and what the state's rights are. Right now we are sick and tired of it all and there will come a time when people will take secession a lot more seriously. There will come a time when the federal government will no longer be able to deliver and that day will come when the dollar collapses."

    In addition to secession, the other concepts which we need to embrace strongly at this point in time include the following:

    (i) States' Rights and State Sovereignty; the need for a robust federalist system to curb the powers of the federal government;
    (2) The right of people to limited government and limited intrusion into their lives and upon their liberties, including their right to property,
    (3) The right of people to expect their states to stick up for their liberties and their property rights; AND
    (4) Nullification - the right and duty of each state to review laws, policies, and decisions of all branches of the federal government to make sure they are within the constitutional limits of power. If not, the state must declare it null and void (unconstitutional) and refuse to enforce... for the purpose of protecting individual liberty. [I have addressed Nullification in many previous articles that I have written - see http://forloveofgodandcountry.wordpress.com

    I mention property rights specifically because our Founders have warned us that If we want to surrender our human liberties to our government, then letting it control our property is the surest way to do that. There is a reason that Jefferson included the 3 most fundamental liberties as co-equals: "Life, Liberty, and Pursuit of Happiness" (ie, "Property") in the charter of our free nation. A person can't enjoy Life without the rights to enjoy his property and other liberties. A person can't enjoy his property without his other liberty rights. And a person can't enjoy his Liberty if he can't enjoy his property and the right to live his life freely (without interfering with another's rights). Government doesn't need to take physical title to a person's property without rendering it useless or meaningless. Ronald Reagan spoke eloquently on this in his 1964 speech "A Time for Choosing.