What If Secession Happens Now?

Recently a private polling company called YouGov conducted a survey asking Americans if they advocated the secession of their home state from the United States.  North and South, Democrat and Republican, the distribution was fairly consistent, averaging out to 23 percent in favor of their state’s secession.

The survey, as reported on March 6 in the London Daily Mail, didn’t inquire about respondents’ reasons one way or the other.  Those aren’t very clear for disastrous states like New York at 28 percent and California at 29, as both of them depend for their survival upon federal subsidies and protections.  We can surmise the reasons for residents of states that have to pay for that security, which had rates substantially higher.

One surprise was Alaska’s highest rating, with 36 percent of the population favoring secession.  Less surprising was the second highest, Texas, at 31 percent.  Connecticut, the ancient Party homeland since the Puritans took over in the 1630s, predictably had the lowest percentage in favor of leaving the Union, only 9 percent, and New England generally came in with figures lower than the average.

Reading the results of these polls closely, you can see that the peaceful secession of Great Britain from the European Union has made quite an impression on Americans.  After all, when Britain voted to leave the EU Brussells sent no battleships up the Thames to bombard London into submission.  “Brexit” has literally set the pattern for “Texit”, the proposition that Texas would be better off leaving the Union.

The respondents pretty clearly don’t understand anything much about the Constitution ― the proposition that a state can legally secede was posed as moot, and answered as a matter of opinion.  But it’s ironic that the purposeful degradation of our schools has left a whole generation so unfamiliar with the Party’s own history of the War that they’ve never heard the standard assertion that secession is forbidden by law.  So 27 percent of the people polled weren’t sure whether they favored secession or not, which, with the 23 percent in favor, adds up to fully half of Americans who see nothing inherently wrong with the basic idea, and presumably nothing illegal about it, either.

In fact, there’s never been anything in our laws to prevent a state’s secession from the Union.  The simple fact is that each of the states joined the United States of America by ratifying the Constitution by convention or plebiscite, and that same authority empowers a state to leave.  Even after the military surrender at Appomattox, the states never juristically abdicated their sovereignty.  States can’t do that, in fact.  They can surrender to a conquerer, but they can’t pass a law repealing their own fundamental law.  That law is what constitutes them as states, giving them the authority to pass laws in the first place.  They can’t pass a law saying that they have no authority to pass laws.

Still less do states that come together to constitute a federation for themselves surrender their sovereignty to the federation.  The federation itself is not sovereign.  The states created it by the power of their own sovereignty, so a transfer of sovereignty, apart from its impossibility, would be self-contradictory:  the powers that created the federation would no longer exist, and so the federation, deriving its existence from those creative authorities, wouldn’t exist, either.  So, as Jefferson Davis phrased it in his Rise and Fall of the Confederate Government, you cannot claim “that the creature is endowed with an authority not possessed by the creator, or that a stream has risen to an elevation above that of its source.”

You can get an accurate perspective on the relative positions of states and their federations from collations of the primary sources, such as Philip B. Kurland and Ralph Lerner’s The Founders’ Constitution (University of Chicago, 5 vols., 1987), and good explanations of the understanding in Lincoln’s time from Davis and from Alexander Stephens’ Constitutional View of the Late War Between the States (Philadelphia 1868).

But a lot of Americans do seem to be confused on this point by the very structure of this federation.  The Constitution was carefully crafted by thirteen distinctly separate states to make the Union look like a single entity when seen from the outside.  That’s why they deputed to the federation’s offices their right to handle foreign affairs, to receive ambassadors from states that hadn’t joined the Union; each foreign state was to deal with the federation as a single entity, rather than having to send an ambassador to each state.  It’s also why the states deputed to the federation’s government their power to have a navy, which by its very nature operates outside the common boundary of the federation.

Here inside that boundary, we’ve forgotten that this still is a federation of free and independent states that created by their own authority a limited union and joined it voluntarily ― just like the E.U.

We also forget that those acts were not unanimous.  To start with, there were fourteen British colonies here.  Canada decided not to declare independence with the others, and indeed records of the convention of 1776 show that each of the others decided on the Declaration individually, some of them reluctantly.  Georgia didn’t send any delegates at all to the first Continental Congress, and was perfectly free to go it alone.

We forget that the Constitution was ratified by the states by their authority as states, and that Art. VII stipulates that The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.  The other four, whichever they might be, were also perfectly free to go on without joining.  Rhode Island famously held out until the last possible moment, on the idea of becoming something like modern Singapore or Hong Kong, a sort of Monaco of the New World.  That plan was dropped when the other states threatened to refuse to trade with Rhode Island at all, or worse.

Well, if nine hadn’t agreed to it the whole proposed Constitution would have been dropped anyway.

We also forget that each of those states still joined the Union with the clear understanding that they could secede at will.  The Declaration invokes the common courtesy of a decent respect to the opinions of Mankind whenever one people dissolves the political bands which have connected them with another, and the seceding Southern states did publish declarations of causes, but no reason for secession is necessary other than that same sovereign will by which the state joined.  A state can just decide that she doesn’t want to be bothered any more.

Some of the states, out of an abundance of caution, made that explicit.  Rhode Island, predictably, ratified on May 29, 1790, but only with the stipulations “That all power is naturally vested in, and consequently derived from the People” and “That the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness.”

New York had already explicitly reiterated that same principle of the Declaration and stipulated in its act of ratification of July 26, 1788, “That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness.”

Virginia had done that, too, on June 26, 1788:  “We the Delegates of the People of Virginia duly elected … and now met in Convention … Do in the name and in behalf of the People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression.”

They shouldn’t have had to fight their way out.  Each state had peacefully left the old federation constituted by the Articles of Confederation simply by not sending delegates to the Continental Congress any more ― just as the Southern states were to secede in 1861 by recalling their Congressional delegations.

Where does that leave us?  Well, one doesn’t want to sound the least bit inflammatory, like some latter-day Thomas Paine, still less a Patrick Henry revivified.  The obvious solution is to read the Constitution and renovate the federal government to set it in correspondence with the powers deputed to it by the states, and with its limitations.  That, too, can be done peacefully, by processes already written into our fundamental law.

The Founders and Framers organized our system recognizing that the sovereign power of each state resides in its people assembled in convention, so we never need to overthrow any of our governments by force.  Since 1860 the Party has stigmatized secession as “rebellion”, but remember:  there was no armed revolution on the part of the Southern states.  They simply seceded from the Union by the same authority and through the same juristic processes by which they’d joined and, in 1861 as in 1776, they defended that uniquely American system against the invading armed forces of powers aimed at destroying their popular sovereignty.  The history of the military campaigns is perfectly consistent with the history of the juristic principles.

Of course, the threat of military force against a civilian population is always terrifying, but just as frightening is the fact that a régime imposed by such force always defeats its own purpose and crumbles into chaos.  That threat of anarchy is probably why it’s so hard to admit that, as things now stand, the federal government doesn’t do anything that it was constituted to do; that everything that it does is extra-constitutional, which is to say unconstitutional or even positively preventing its constitutional functions; and that it doesn’t do anything well or economically ― not even sustainably.

But in light of these surveys that reality makes it easy to see why secession is so attractive to so many.  If Texas, for example, were to secede she’d instantly stand as a world power and one of the richest.  The state is already attracting profitable businesses and productive people from all across the rest of the Union, an exodus that could only be expected to increase to a state freed from federal regulation and taxation.

We may as well remember that, unlike the federal government with its few deputed powers and explicit limitations, each state is juristically complete in the structure of its sovereignty.  That brings us to the central oblivion in all of this:  we’ve forgotten what Alexander Hamilton himself said about the federal government, as James Madison transcribed his remarks at the Constitutional Convention:

“Necessity This does not apply to Fœderal Government ― This may dissolve & yet the order of the community continue ― Anarchy not a necessary consequence”.

Kevin Orlin Johnson

Kevin Orlin Johnson holds a Doctor of Philosophy degree in the History of Architecture, a Master’s degree in Art History, and a Bachelor’s degree in Art History; he has also fulfilled the requirements for a Bachelor’s degree in History. His publications in his principal field, on topics as varied as Louis XIV’s first designs for Versailles or the design of the Chapel of the Most Holy Shroud in Turin, are considered definitive by many scholars here and abroad. He is the author of The Lincolns in the White House (Pangaeus Press, 2022)

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