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Secession: The Right That Can Be Wrong

Published in the Maryland Daily Record October 23, 2014

Secession and the prospects of secession have been much in the news. Eastern Ukraine, ISIS, and Scotland, to name three, are areas where there have been efforts to partition out a new country from an old one, or, in the case of ISIS, from two of them. And there have been plenty of recent instances where secession has been successful, like Southern Sudan, Eritrea, and the republics carved from the former Yugoslavia, and others where it could someday happen, like Catalonia or the Palestinian territories or Quebec. How do we feel about secession? How should we feel about it – realizing as we ask ourselves that question that this country itself was formed by secession – from colonial status at least – once upon a time?

What the Declaration Declares

American constitutional theory, one soon discovers, is deeply ambivalent about secession. In essence, the Declaration of Independence, which formalized our country’s first act of secession, is at odds with the Constitution. The Declaration posits, in words we all know, that it may “become necessary” – and hence obviously permissible – “for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, [a] separate and equal station.” While the Declaration says it is appropriate to state reasons for doing so, the Declaration does not say that reasons are required; that secession is a right is something the Founding Fathers simply decided to assume, and one does not need reasons or permission to exercise a right. To be sure, the Declaration says that when the existing state structure becomes destructive of the ends of government (life, liberty and the pursuit of happiness), it is definitely appropriate to secede. But the existence of the right, as articulated in the Declaration, seems not to depend upon such preconditions.

What the Constitution Says

Our experience with the Constitution has been rather different. In the first place, the nation formed from a grouping of colonies which, upon independence, became sovereign nations, and to some undefined extent remained so after the Union was formed. The Tenth Amendment retained for those former colonies whatever sovereign powers were not specifically ceded to the federal government. Indeed the constitutional theory of the Confederate States of America, the nation’s second great experiment with secession, was based on the Tenth Amendment.[1] The Constitution does not expressly provide for any right of secession, but the South maintained that it was acting under the powers reserved to the various states under the Tenth Amendment.

Lincoln read the Constitution differently. For him, the absence of a constitutional mechanism for secession meant there could be none, and that even a union formed by secession could not be unmade by it.[2] And he no doubt felt that the Civil War might settle that issue.

But did the Civil War in any way “prove” that secession was not a legal right? In a positivist sense, yes.[3] But only in that sense. What the Civil War really proved was that no one would allow secession to happen, right or wrong. But might is a very unsatisfactory way of making (or unmaking) right, and no real reply to the reasoning of the Declaration of Independence.[4] The Declaration says that governments derive their just powers from the consent of the governed, something almost everyone in the West would agree with. This seems to be the quintessential human political right. Secession is simply a withdrawal of that consent by a large group of the governed all at once.

Dual Citizens?

Perhaps sensing this problem, one of the things the post-Civil War Republican Congress and the Northern States did in passing the Fourteenth Amendment between 1866 and 1868 was attempt to destroy in a more theoretical way the constitutional underpinnings of secessionist theory.[5] In the Fourteenth Amendment’s citizenship clause (which made everyone born in the county a citizen of the U.S. and not merely of a constituent state) and the privileges and immunities clause (which protected U.S. citizens from discrimination under state laws), there was an undoing of the notion that had swayed Robert E. Lee when he declined command of the Union Army, i.e. that he was a citizen of Virginia first, and of the United States only secondarily and derivatively.[6] The thinking was that if the states lacked their own “detachable” citizenries, then the states, the otherwise naturally detachable governmental and geographical units, could not take their citizens with them if they tried to leave. And what good would a secession be if it did not sunder peoples as well as territories?

But let’s grant that with the Fourteenth Amendment citizens would not be detachable anymore merely because a state left. If a state somehow did leave, though, all the Fourteenth Amendment would say would be that the citizens of the state would still be U.S. citizens. But then what? Even American law admits the possibility of dual citizenship. The citizens of the daughter country would still be citizens of the mother country – if they wanted to be – but nonetheless the daughter country would have citizens. Hence neither expressly nor by implication does the Fourteenth Amendment really outlaw secession or deprive a daughter country of citizens. So the Fourteenth Amendment isn’t much in the way of inoculation against secession.

Expatriation

Then too U.S. law unquestionably recognizes the right of expatriation for individuals, and it recognizes this as a fundamental human right.[7] But if it is a fundamental human right for individuals to expatriate, what principle prevents that right from extending to groups of individuals, to polities, to states? Surely expatriation is more effective if done in large blocs. Does it cease to be a right as it becomes more effective? No obvious reason why appears.

So we have a right clearly recognized as extending to individuals, not explicitly forbidden to states by the Constitution, apparently preserved by implication to states by the Tenth Amendment, and in harmony with the sense of the Declaration of Independence. That right, then, would seem to be of equal dignity with expatriation, which is recognized. Secession is a right.[8]

It’s Always Complicated

In practice, does that mean that the North was wrong to oppose Southern secession a century and a half ago? No; slavery was one of the most massive human rights violations in human history, and the Southern secession was undertaken primarily to perpetuate it: an exercise of a right in service of the violation of a right. And in the hierarchy of rights, those of the slaves trumped those of the slaveholding states. Surely the North was not wrong to intervene.

But, as I hope to show next time, that complicated analysis is typical of what we see when we look at secessions and attempted secessions the world over. Yes, sometimes in the course of human events, peoples want to part ways, and as an abstract matter they should have that right. But such parting is all too often sought for reasons or by means that do not look like a simple exercise of human rights. Rights can be wrong. As the proverb puts it: Circumstances alter cases.

The American experience with secession is replete with those circumstances. And so are most of the others, as we shall see.

_____________

[1]. See Robert W. McGee, The Theory of Secession and Emerging Democracies: A Constitutional Solution, 28 Stan. J. Int’l L. 451, 454 (1992).

[2]. Daniel A. Farber, The Fourteenth Amendment and the Unconstitutionality of Secession, 45 Akron L. Rev. 479, 486 (2012), says that Lincoln founded his view in the Articles of Association, entered into two years before the Declaration of Independence, which established the individual states as emanations of the national government, as a result of which the individual states could not have enjoyed sovereignty of any sort. With due respect to Lincoln, this is simply poppycock. The text of those Articles says nothing about creating a nation, let alone making the nonexistent nation the source of state or colonial sovereignty. Jefferson Davis, who explicitly relied on the Tenth Amendment for the Southern states’ right to secede, was in this regard a much sounder constitutionalist than Lincoln.

[3]. The Supreme Court, in Texas v. White, 74 U.S. 700, 725, 19 L. Ed. 227 (1868), found what Lincoln thought he saw in the Articles of Association (see the previous Note) in the Articles of Confederation, which described the Union as something which would “be perpetual.” The thing is, we don’t live under the Articles of Confederation. Even assuming that the perpetuity intended by this language was something more significant than the perpetuity of a corporation (which, as we know is subject to mergers, spinoffs, and, of late, inversions, and by that analogy would certainly be amenable to the corporate equivalent of secession without any trespass on its perpetuity), there are numerous aspects of the Articles of Confederation which are obvious dead letters. Nowhere does the Constitution which replaced the Articles pick and choose which aspects of the Confederation it will dispense with and which it will perpetuate (at least other than by repeating verbatim or nearly verbatim the text of the Articles – but in light of the ability of the Constitution to repeat the language of the Articles where it chooses, the fact that perpetuity is unmentioned in the Constitution argues in favor of, not against, an implied right to secede). The Constitution simply moved the Articles out and replaced them wholesale. It was ratified by the individual states, not by “the United States in Congress assembled” or “the Committee of States,” the governing entities of the Confederation. Texas v. White, then, was operating by ipse dixit, not by any intellectually respectable reasoning. In other words, the indissolubility of the Union is established from a legal positivist perspective, but not otherwise.

[4]. This reasoning seems at odds with what I wrote in these pages four years ago concerning Jefferson Davis and the Southern cause, i.e. that they were traitors. If they were merely exercising a collective political right, how could they be traitors? I guess my thinking has changed to this extent: I now think, as I state below, that they had the right to do what they did from a constitutional standpoint. If they had a legal right to secede, then that secession could not be treason, because an act cannot be simultaneously the exercise of a legal right and one of the worst crimes in the book. But I also think, as I write below, that the Confederacy was primarily about slavery, and that it was proper for the North to oppose Southern secession by arms. Jefferson Davis, then, probably was not a traitor; instead, he was the head of a rogue nation built on slavery, something akin to, although obviously not identical to, genocide. (You don’t kill too many of the slaves, individuals selected for their mistreatment by virtue of the people they belong to, a hallmark of genocide, but you kill any prospect of them living what should have been their lives. It may be better than genocide but not by all that much.) Davis was not Benedict Arnold, then, and he was not Hitler, but in my revised thinking he was closer to the latter than to the former. That leaves it just as offensive to me now as it was in 2010 that parts of a federally-funded highway be named after him.

[5]. See Farber at 483. I am obviously much indebted to this article, and have borrowed freely from Professor Farber’s thoughts.

[6]. See Farber at 479-80.

[7]. Expatriation is a fundamental right of U.S. citizens, as recognized by the U.S. Congress as long ago as 1868. As provided in a law passed that year which is still a note within the U.S. Code:

 [T]he right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness… Therefore any declaration, instruction, opinion, order, or decision of any officer of the United States which denies, restricts, impairs, or questions the right of expatriation, is declared inconsistent with the fundamental principles of the Republic.

Act of July 27, 1868, ch. 249, 15 Stat. 223 (1868). This right is also recognized in U.S. treaties. See, e.g. the Burlingame Treaty of 1868 between the United States and China which recognized “the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of . . . free migration and emigration . . . for purposes of curiosity, of trade, or as permanent residents.” United States-China, July 28, 1868, art. 5, 16 Stat. 739, 740.

[8]. Professor Cass Sunstein would apparently differ with me, in that he dismisses with contempt the view that there is any right to secede, express or implied, in the U.S. Constitution. “[N]o serious scholar or politician now argues that a right to secede exists under American constitutional law.” Cass R. Sunstein, Constitutionalism and Secession, 58 U. Chi. L. Rev. 633 (1991). In this article, written as the Soviet Union and its bloc were dissolving, he acknowledges the value of secession, but discourages the writing of new constitutions in Eastern Europe that expressly recognize such a right. His reasoning is hard to follow. He seems to acknowledge that secession is a right, but one that it would be dangerous to accord explicitly. But then he also says that the absence of the inclusion of such a right in a constitution is and should be viewed as a waiver of that right. But if the right has been waived, it’s no longer a right, as far as I can see. In truth, Sunstein seems to be at least as aware of the perils of an absolutist stance on this issue as I am. He just doesn’t like sounding as undecided as he really is.

Copyright (c) Jack L. B. Gohn

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