Secession, Legal Orders, and Justification

A few days ago ago I tweeted this line: “Secession is the decision to step out of an existing political order, so it’s a category error to try to justify it legally.”

Obviously I’m not going to solve all of the problems of a burgeoning sub-discipline of political philosophy with a single tweet. But it seems I’ve set off a big discussion anyway, so I’d better join in.

David Drumm called my comment “ingenious,” but Ilya Somin doesn’t agree. And Timothy Sandefur thinks all of us are wrong.

Let’s start with Somin, who writes:

I generally agree with Drumm’s and Kuznicki’s condemnation of libertarian defenses of Confederate secession. But I don’t think that legal secession is necessarily a “category error.” Like many other legal relationships – partnerships, clubs, corporations – a federal system of government can incorporate rules that provide for its own dissolution. For example, the Canadian Supreme Court has ruled that Canada’s Constitution allows Quebec to secede so long as the secessionists prevail in a referendum and negotiate certain issues with the rest of Canada. If Quebec does secede in the aftermath of a secessionist referendum victory, the resulting secession will be perfectly legal under Canadian law. There are other federal constitutions that explicitly provide for a right of secession. The most famous recent example is Article 72 of the Soviet Constitution, which numerous constituent republics seceded under in 1990-91.

Of course, it’s indisputably true that some secessions are authorized by some countries’ constitutions. Others, however, are not. Within these two types of cases, authorized and unauthorized, we can also imagine specific acts of secession that we find ethically justified or ethically unjustified.

That a given constitution forbids secession does not in my view mean that all secessions from it are necessarily unjustified. It means only that we have to justify them through extraconstitutional means, and these means must in themselves be weighty enough to also justify overthrowing the existing legal order.

Similarly, that a given constitution allows secession does not in my view automatically justify all secessions carried out under it. We may still find some of them ill-advised or even unjustified. There’s nothing about constitutional law that says that where the law permits a thing, the conscience has to be silent.

That said, secession has a much lower bar to clear in cases where it is constitutionally authorized. In such cases, the secession doesn’t have to be for a weighty enough cause to justify the overthrow of the existing legal order. A secession for relatively indifferent things might be permissible. Indeed, if the constitutional requirements for secession are easy enough, we should expect them to occur fairly often and for trivial reasons.

Sandefur appears to complicate matters a bit when he writes:

Jason Kuznicki and Ilya Somin make the critical error of mistaking “secession” for “revolution.” Revolution means to overthrow a political and legal order, while secession is a legal theory—it is the theory that for a state to leave the union is itself within the legal order. It is therefore literally incorrect to say that secession is the “attempt to step outside the legal order.” That’s revolution. The American Revolution was not an attempt at secession—note that the word was virtually never used by the Revolutionary leaders. On the contrary, the term secession came into use in the decades before the Civil War as an attempt to justify a (pseudo-)revolutionary act within the legal order.[1]

Not all revolutions, however, involve one government at the start and two or more at the end. The American Revolution was relatively unusual in this way. And secessions carried out according to a constitution that authorizes them are perhaps not always rightly considered revolutions, depending on what other changes are carried out along the way.

So ultimately, “the law says we can” or “the law says we can’t” doesn’t answer the question of whether a given secession is a justified act. To answer it, you may also have to appeal to something outside the law.

Aside from that, I agree with Sandefur that the U.S. Constitution does not permit secession. I think it’s very clear on that point right now, and indeed it was clear (although slightly less so) in 1860. The southern secession was thus constitutionally unjustified. It was also ethically unjustified, because its purpose was to protect the institution of slavery.

Indeed, if by an act of secession the North might have ended slavery, then it would have been justified in doing so, the 1860 Constitution notwithstanding, because ending slavery is in my judgment a weighty enough reason to overcome whatever respect one might have for an existing legal order.[2]

[1] To use the term “secession” in a way that refers only to the American South or to other cases strictly of its type would rob us of any ability to do comparative work on phenomena that nonetheless manifestly deserve to be compared (or at times contrasted) to one another. Secession is not just a quirk of American law. And it is no insult to the American Revolution to call it a secession, even if the founders never used the term. Legal and ethical permissibility may vary arbitrarily across different acts of secession, just as it does with various business transactions or, indeed, with various types of killing.

[2] Yes, I know about Lysander Spooner and Frederick Douglass, and their arguments that the 1860 Constitution was already sufficient to abolish slavery. While I find them interesting, I am not taking these arguments to have any force for the purposes of our discussion.

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106 thoughts on “Secession, Legal Orders, and Justification

    • There’s a difference between exit and secession, though.  Secession necessarily carves out a chunk of the original nation, in a way that exit does not.  You have a right to move to any place that will take you; but you can’t just unilaterally declare that your house is the sovereign nation of Jaybirdia and that federal laws don’t apply there.

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      • Well, he can — it’s just a question of what happens if and when folks with guns show up at his doorstep to express their disapproval of his declaration.

        BTW my wife was just telling me about a news segment she’d seen recently, where some people have essentially done this very thing.  Turns out that in many cases the cost and hassle of fighting specific individuals on this is higher than it’s worth, so they get away with not paying taxes, tickets, etc.

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      • I’m confused about how one gets a right to a particular chunk of land, then.

        If a group of people (let’s have it be Maine, just for ease of argument) say “we have more in common with New Brunswick than with y’all Southerners”, I don’t see that the US would have the right to say “you Northerners can leave, but we get to keep your fields and your houses!” (Assuming an impossible consensus, of course.)

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        • Well, if property rights derive from the government, how can you take it with you once you sever yourself from that government? Maybe this is a legal realist or positivist argument that won’t convince everyone, but I don’t see how exit could undermine sovereignty.

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          • I don’t know that property rights do derive from the government.

            If they did, however, I see that argument… so let’s say that a group of folks do secede and want to keep the land and, temerity of temerities, they declare themselves a new government in their own right.

            War?

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            • Yes, I think the realist perspective would be – ‘a kingdom, if you can keep it!

              I’ve never been amenable to the notion that property rights exist without government – if not from there, then where?

              Any other derivation seems like it would be subject to the whims of everyone else.

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              • For me property rights are a moral precept, and like all moral precepts I have it derives form the principal that the right moral principles are the ones that contribute to human welfare.  Societies work better with property rights than without, therefore property rights are a moral imperative.

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                • I should have been more clear, I only mean the property rights to ownership of land. I agree with you that a notion of property rights are fundamental. I’m not sure that it’s necessary for property rights to land to exist – why would they be?

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                • I’m largely a Yglesian on these issues, but I think there’s a case for at least some minimal zoning in denser areas.  Essentially any large or intensive use will have externalities on surrounding properties, be it the noise from a nightclub, the crowds of a sports arena, or the frequent deliveries of a large factory.  Managing these externalities doesn’t strike me as a crazy area for local government to be involved in.

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                  • I really dont know. On the face of it the simple act of zoning cuts into the supply of land and thus drives up prices. But maybe there are some situations where the zoning allows us to handle externalities properly. (Presumably the externalities handling is a bit more of NIMBY than coal scrubbing, but maybe some things shouldnt be in anyone’s literal backyards)

                    One real worry is that many actual instances of zoning are bad even though there might in theory be some way of doing zoning the right way. I would draw an analogy to command economies. In theory, there could be some command economy which made the worst off even better off than a market economy. However, in practice command economies tend to be basket cases. I wouldnt look at the analogy too closely. And the analogy might break down as the information required to run a comand economy well is very high while the information required to write zoning laws might be a lot less (and therefore much more achievable).

                    Honestly, I haven’t studied the issue and may just defer to Yglessias on this.

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                    • Many actual instances of zoning are bad, yes.  But I’m not convinced that they’re worse than your proposed alternative of “anyone is allowed to build anything anywhere” (if I’m misstating your position, please correct me).

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                    • I’m trying to state things very tentatively here. I’m thinking that anyone building anything anywhere is not going to be as bad as it sounds. I’m thinking that we could still find homes in neighbourhood sized clusters. We may not find row upn row of houses like is common in bigger neighbourhoods and there probably will be some plot of land stuck somewhere serving non-rsidential purposes. Seriously, I’m willing to take a wait and see approach to this. i.e. we slowly, in a piecemeal manner, pare down the zoning regulations. If it results in lower rents and more walkable neighbourhood all the better.

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        • Following Jaybird’s example-

          If the people of Maine decided to secede and take their fields and farms with them; perhaps the answer from the rest of us would be-

          “Fine- just give us your roads, bridges, dams, power plants, and ports.”

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          • Its actually not uncommon for cities to break apart- where smaller neighborhoods secede and form independent cities. Here in Southern California, I knwo that West Hollywood seceded from LA, Santa Clarita seceded from LA County, and so on.

            In each case, there was a vote by residents of both cities approving it, and a negotiation over such items as policing, fire, roads and such.

            Sort of like dividing up community property in a divorce.

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            • Actually, West Hollywood was never part of the City of LA – it used to be an unincorporated part of LA County, and incorporated in 1984.  If you can find a cite which says that the territory now occupied by West Hollywood was ever within the the LA city limits, please let me know what that cite is and I will both apologize and harangue these people http://www.wehoba.com/City2F.html to correct their website.

               

              I have no idea what you mean by “Santa Clarita seceded from LA County”; Santa Clarita was formed in 1987 by the merger of several existing communities within LA County, some already incorporated and some not.  Santa Clarita most definitely still is part of LA County, as much as any other incorporated city is.

              Not to say that there haven’t been cases of subparts of cities seceding, just not either of your two examples.

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              • I stand corrected about West Hollywood- I was going by memory. And yes Santa Clarita is still within LA County, but formed their own city to establish local control.

                Similar point, that each was like a divorce where dividing up control and maintenance of infrastructure had to be established.

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                • One of the recent cases of “within the rules” secession is amusing because it involves a community full of left leaning government bureaucrats.

                  The residents of Silver Spring and Takoma Park, Maryland decided that the schools in wealthier, whiter Montgomery County were better than those of blacker, poorer, and less Ivy-cosmopolitan Prince George’s County (where Obama spoke this week). So they got a referendum on the ballot and voted to leave Prince George’s County and become part of Montgomery County, which more narrowly voted to accept them.

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    • But what if the opinion of that group of individuals was less than unanimous, but the decision of the majority (or even just the decision of the majority of elected representatives) was binding upon the whole, which is almost always going to be the case, at least as a practical matter?  What if 40% of the people upon whom the decision was binding were prohibited from having any say in the matter whatsoever?

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          • Sure. I don’t know that the argument that “The Government” has the right to their fields and homes makes more sense to me than the argument that the individuals who bought and tended them have the right to them. (Of course, this is where the arguments over access to public utilities come into play but it also seems to me that a sufficiently large group of people seceding could make a claim to, at least, the land (if not the phone, electric, water, and sewage systems).

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                • I’ve long wondered what the libertarian response would be to a “private government” that looked and ran exactly like a “regular government”, but draw it’s authority from the fact that it initially owned all the land in the country’s territory and only sold the land under the condition that all inhabitants, current and future, agree to adhere to the laws of Government, Inc.

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                  • In medieval times, all the land was the property of the monarch. He literally owned every square inch of his kingdom and simply granted permission to individuals to use it for whatever purpose.

                    Of course, those who did not agree to his terms were free to move elsewhere and negotiate a different deal with another monarch. So its not like there was any coercion needed.

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                    • My understanding, which could be wrong, is that there is something called alloidal ownership that amounts to sovereignty over the land without restriction and originally could only be held by a monarch or equivalent. All other forms of land ownership are technically an ‘estate’ which is the legal right to use that land subject to restrictions imposed by the alloidal owner or any intermediaries if you have a feudal chain. The restrictions would have been feudal duties originally but property taxes and zoning laws may be the modern equivalent.

                      I think that on independence alloidal ownership in the thirteen colonies was passed to the state governments but they may have ceded it to the federal government by accepting the constitution.

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          • Ugh.  The internet ate almost all of this comment.

            But to sum up what I originally wrote:

            1.  I didn’t mean to suggest you were advocating Lost Causery, but was more thinking aloud myself.

            2.  It seems to me that surely small groups of individuals should be permitted to secede for whatever reason they wish if they can do so unanimously and are prepared to deal with the consequences thereof.  As a practical matter, such groups of people will be very small indeed in almost all circumstances for reasons of geography and infrastructure.

            3.  However, for purposes of this discussion, secession will ordinarily mean secession of fairly large geographic areas in which the population is less than unanimous.  Here, I think Jason has hit the bulls-eye.  Failing unanimity or a specific constitutional regime providing a process for secession, I think you need a highly compelling reason for secession.  Where Jason discusses “stepping out of an existing political order,” the reason this is such a big deal is precisely because of its effects on the dissenting portions of the population, however small.  It is their rights that are being trampled upon or at least affected by the secession.

            4.  The compelling justification must be extraordinarily strong when, as in the case of the CSA, a significant portion of the population doesn’t even have a right to have a say in the decision – 40% if you just look at slaves, and probably around 90-95% if you look at everyone lacking a right to vote at the time.

            Obviously, continued oppression of that 40% doesn’t meet the standard.  But even if we accept the Lost Causer mythology that secession was caused by some issue other than slavery, the justification falls extraordinarily short of what is necessary given the impact of secession on those who might have dissented.

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            • 2.  It seems to me that surely small groups of individuals should be permitted to secede for whatever reason they wish if they can do so unanimously and are prepared to deal with the consequences thereof.

              To what extent is “war” a reasonable response on the part of the old government?

              3.  However, for purposes of this discussion, secession will ordinarily mean secession of fairly large geographic areas in which the population is less than unanimous.  Here, I think Jason has hit the bulls-eye.  Failing unanimity or a specific constitutional regime providing a process for secession, I think you need a highly compelling reason for secession.

              This is why I think that the Gaza Strip (or West Bank) makes for a much more interesting example than Quebec or the Confederacy. It seems to me that if a compelling reason exists, they have it.

              4.  The compelling justification must be extraordinarily strong when, as in the case of the CSA, a significant portion of the population doesn’t even have a right to have a say in the decision – 40% if you just look at slaves, and probably around 90-95% if you look at everyone lacking a right to vote at the time.

              Absolutely.

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              • “To what extent is “war” a reasonable response on the part of the old government?”

                None, IMHO.  Obviously, there is no obligation that the seceding parties be permitted to take advantage of the old government’s infrastructure unless you’re an open borders type (and I am!), but even if you are, there’s surely no obligation on the part of the government to continue providing various services. If they wanted to put up a giant tollbooth and fence off the remainder of the property and charge some exorbitant toll for the privilege of using their roads, so be it.

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                • There is no prima facie obligation on the part of any government to allow any part of its territory to secede*.

                  Consider that a government which notionally exerts a monopoly on the legitimate use of force within a particular territory makes it a policy to let people go pecefully whenever thy want to secede. Then, it seems that a lot of groups would want to secede. This would especially be the case for states which contribute more in taxes than the services they receive. If by seceding, I could be in a position to bargain for more things than I ordinarily get from the existing government, I would secede. However, this would work against the very purpose for which governments are instituted.

                   

                  *I’m open to the possibility that secession might be instrumental to some other aims e.g. peace. Malaysia kicked out Singapore because of differences of opinion. At the very least in retrospect, Singapore is better off separate from Malaysia. Though it didnt seem like that at the time

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            • It seems to me that surely small groups of individuals should be permitted to secede for whatever reason they wish if they can do so unanimously and are prepared to deal with the consequences thereof.  As a practical matter, such groups of people will be very small indeed in almost all circumstances for reasons of geography and infrastructure.

              I’m curious what legal form(s) you think this duty takes or should take in the United States.  Is this an interpretive claim about law that exists – whereby the normative sense of the phrase “should be permitted” is a claim about what the right reading of exiting law is and thus how it should be interpreted and applied?  Or is it more of an injunction to executives to make decisions about enforcement of laws that allow for effective secession?  (In which case, I wonder how we would go about putting in place a system of guidance for executives in determining how and when to recognize a secession.)  Or, is this simply a call for the establishment in law of protections for this privilege?  And if so, should these be written into the Constitutions, or made part of statutory code? What kind of mechanisms and language would we want to employ to achieve the protections?

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              • As a practical matter, I’m not sure that it’s a call for much of anything beyond a general argument against the legislation of personal morality and/or the enforcement of laws that seek to do so. If anything, I suppose it’s an argument that law enforcement, in the rare circumstance where a family, group, etc. has declared its secession, should probably only try to make an incursion onto the property to enforce laws where the seceding group’s violations thereof have clear victims.  In the case of nonpayment of property taxes, for the most part, just cut them off from all services and infrastructure and make them pay a fee whenever they leave the property.   If they’re in fact fully self-sufficient, then nonpayment of income taxes probably shouldn’t be much of an issue.  If they are in fact earning an income off-site and not paying income taxes, just catch them when they leave the property.  Basically, just take a hands-off approach and be patient.

                …..Awhile back I wound up talking to a clerk of court in a county with a good number of tax protester/militia/secessionist types.  She basically said that for the overwhelming majority of those folks, there was sort of a mutual live and let live attitude – they mostly kept to themselves and didn’t bother anyone, and the county mostly left them alone, and relations were pretty good and peaceful.  There was, however, one exception (naturally the group I was having to deal with), which was a group that was actively aggressive, incurring debts all over the place, refusing to pay, making all sorts of outlandish court filings, and refusing to return defaulted collateral whilst making it known they were heavily armed.

                Of course, all of these groups were heavily armed, but it was only this one that was ever a source of problems, and so it was only this one that the county ever concerned itself with.  And even then, as I recall, they waited as long as they could until they had just about every judgment possible so that they could take care of everything in one fell swoop.  As I recall – and don’t quote me on this – when the time came, they went in as sensitively and cautiously as possible and succeeded in gathering every thing and every one they needed without any major incident.

                It struck me then, and continues to strike me now, that said county took a pretty wise, decent, and respectful view of these sorts of folks.

                So to the extent I’m advocating any policy prescription, I suppose it’s that law enforcement agencies take a posture similar to that county’s when dealing with proclaimed secessionists (and, to be perfectly honest, when dealing with just about anyone alleged to have done something nonviolent).

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                  • To a large extent, yes.  The one difference is that in my theory, the secessionist would be expected to pay obligations incurred off-site and obey laws while off-site, with the understanding that failing to do so would put his “independence” at serious risk.  From the above anecdotal evidence, it seems like this is how the overwhelming majority of such people act in their dealings with the government.

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                  • For my part, I think I’d tend to favor a more formal, or in any case, rigorous, model, along the lines of the process for gaining conscientious objector status.  If your injunction became a broad imperative of governance rather than just an occasional relaxation of law enforcement, it seems to me we’d be opening up a clear route to widespread avoidance of paying taxes.  (There can’t be any denying that the kind of small-pocket secessionists you have in mind will in actual practice be free-riding on other taxpayers through their benefit from various services whose provision can’t be limited to those who pay, in particular defense but also environmental protection.)  Creating a formal route to personal secession seems to me an idea giving serious thought to, but I’d definitely want there to be a process of rigorous review that anyone wishing to secede would have to undergo before they could have an acknowledged, valid expectation that some given government (municipal, county, state, federal) must stop trying to collect taxes from them and enforce other laws applicable elsewhere in the jurisdiction on the land in question.

                    But then I do admit I am a bit of a centralizing order-fetishist…

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                    • I’d say that if this ever became a problem of any note to the government in question, that said government would be well justified in setting up a toll booth with wonderfully exorbitant tolls right on the edge of the relevant property.  I don’t think it would take terribly long for the message to be sent.  That also strikes me less likely to create major problems (and bad PR!) than going in with guns drawn to get someone on tax evasion charges.

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                    • Not sure I see how that’s not just an argument that there’s no efficacy to enforcing tax collections with drawn guns.  From the perspective of the government’s cost-benefit analysis, what’s different about the case of secessionists?

                      In other words, I guess all I’m arguing about is your general injunction.  I have no problem wherever, whenever a government determines some enforcement action doesn’t have a positive benefit-cost difference. I’m great with governments following that incentive where they see fit.  But by saying this is how all governments “should” govern, presumably you would want that general injunction about how to enforce laws to become general practice, and therefore common knowledge.  All of a sudden all anyone has to do to not pay taxes is just figure out a way not to have any paycheck income from which the government can withhold amounts, and call himself a secessionist.  I think we’re going need to look into their commitment and specific situation before we grant htat just anyone can do that after the point at which your injunction has become the guiding law enforcement philosophy and every citizen knows it’s the case.

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                    • Michael:

                      I’m really just trying to work through all of this myself, so take everything I write in this thread with a pretty giant grain of salt (except for my point about the need for extremely compelling justification for secession absent unanimity).

                      With that in mind:

                      Not sure I see how that’s not just an argument that there’s no efficacy to enforcing tax collections with drawn guns. …

                      All of a sudden all anyone has to do to not pay taxes is just figure out a way not to have any paycheck income from which the government can withhold amounts, and call himself a secessionist.  I think we’re going need to look into their commitment and specific situation before we grant htat just anyone can do that after the point at which your injunction has become the guiding law enforcement philosophy and every citizen knows it’s the case.

                      To a certain extent, my moral and pragmatic arguments are two sides of the same coin here, I think.  Taxes shouldn’t be enforced at the point of a gun as a moral matter, and I think there are a fair number of people who intuitively agree with that sentiment; as a result, as a practical matter, attempting to enforce taxes at the point of a gun will result in potentially violent resistance and quite a bit of defiance.

                      However, I think you’re overestimating the appeal of declaring oneself a secessionist and thereby avoiding payment of taxes in my proposed system since my solution to the free rider problem is the institution of massive tolls, sales taxes, etc. (from which income and property taxpayers could easily enough be exempted).  In this proposed system, to completely avoid paying your taxes, or even to significantly avoid them, you’d have to become a complete or near complete hermit, with little to no interaction with the outside world, particularly for commercial purposes.  Basically, non-income taxes and tolls could be set in such a way as to substitute for income and property taxes.

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            •  It seems to me that surely small groups of individuals should be permitted to secede for whatever reason they wish if they can do so unanimously and are prepared to deal with the consequences thereof. 

              Well what about the impact on the rest of us? Are we not allowed to defend our interests?

              When one group of people secede- for example, if California were to secede- it has a drastic impact on the rest of the nation; for example, we would control the majority of the export-import routes that the nation depends on. Doesn’t say, Kansas have an interest in access to the Pacific? Is their interest entirely subservient to the whims of Californians?

              Allowing one group to unilaterally secede without the permission of the rest results in the opposite of liberty- it allows the most powerful to leverage their unique attributes of geography and power to coerce the rest of us into submission.

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              • As a practical matter, though, I’m talking only about small groups of individuals lacking in public infrastructure.  It is physically not possible for a state or municipality of any notable geographic or economic size to achieve the unanimity of which I speak.  Then of course there’s the whole thing about infrastructure, even if somehow unanimity could be achieved – who holds title to that infrastructure?  A good chunk of that is likely to be more or less owned by the feds, so the seceding state is going to probably need to buy it up, and the feds don’t exactly have to sell.

                But if, hypothetically, California seceded unanimously tomorrow and had sole title to every piece of infrastructure in its geographic territory…..then no, I would not say that Kansas had an absolute right to free access of California’s ports and use of its infrastructure.  Again, assuming unanimity of opinion in California, which is not possible.  Of course, for California to shut access to Kansas completely off would be pretty foolish for California, even before we got to my whole set of moral views about relatively open borders and free trade.

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                • “But if, hypothetically, California seceded unanimously tomorrow and had sole title to every piece of infrastructure in its geographic territory…..”

                  This seems as good a place as any to bring the point up… the US federal government asserts ownership of 45% of the land area of California.  Similar situations apply to the western states from the Rockies to the Pacific (Alaska and Hawaii are such odd cases that I tend to ignore them).  If California seceded unanimously tomorrow and asserted state title to that land, what’s an appropriate position for the other states to take?

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                    • They have a legal claim, but the moral claim is weak. The states never got a choice on how much of their land would be federal, have never received remotely enough in PILTs from it, have been precluded from developing it, and unlike eastern states never got a chance to reclaim it and turn it over to private ownership.

                      This gets to the nub of it, though. If the federal government would retain ownership over its land, almost none of the western states could leave. Can any country be independent with another country owning 40% or more of its land? This is the same as saying “We’ll invade if you try to leave.”

                      At least to the western states. The eastern states would still be able to leave. What, morally speaking, have the eastern states done to deserve this preferential treatment? This, to me, goes to why the moral claim is so weak. It’s suggesting that the western states do not deserve to be in control of their own lands in the event they seceded. On what moral basis? It’s not as though the federal government has poured tons and tons of money into developing it. What economics gains that have come from it have arguably been offset by the states’ inability to develop it or log it or set up a theme park in Yellowstone National Park.

                      (Okay, I’ll stop now. I’m repeating myself.)

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                • Mark- You are framing this in terms of absolute rights- as if it were simply a matter of Kansas having a claim on California’s ports.

                  Stipulate that it doesn’t. My point is that all states and communities and individuals are linked together in complex networks; the notion that one can simply secede from the whole without any sort of adverse impacts on the others is almost never possible.

                  California seceding would cause actual harm to Kansas.

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                  • I’m certainly willing to concede that actual harm would be caused in reality (though it seems odd to introduce reality into this particular hypothetical, which is practically impossible to begin with), but obviously it would be a second order harm.

                    The negative rights of the individual Californians to secede would, in this theoretical world, trump Kansas’ positive rights (if any) to the fruits of California’s participation or non-participation in the federal government.

                    But honestly I’m not sure that it’s much worth pursuing the consequences of this hypothetical since my main point is that states, as a practical matter, can never have the right to secede absent strongly compelling justification.  The only circumstance where they would not (unanimity) is, in my view, impossible not only in fact but also probably even in theory.

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                    • It seems to me that in questions of balancing harm, you also have to look at obligations. Namely, what obligation does California have to act against its own self-interest (if it determined that staying in the US was against its own self-interest) for the sake of Kansas? That seems to me to be the road to answering the harm question.

                      (As a practical matter, I believe that California and the United States both benefit from their inclusion. I’m actually not sure if there is any state for which mutual benefit is not the case.)

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                  • Well, yes, but they would be causing harm in the sense that I ceasing to donate to a political party is causing it harm. They are harmed by the cessation of my aid, but that is not morally importan my since they had no claim to my aid in the first place.

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      • There will almost certainly be regions that don’t want to secede (e.g. West Virginia or Eastern Tennessee.)  Don’t their residents have as much right to independent action as their containing states do?

        Actually, it’s not in evidence that any of the Confederate states had a strict majority in favor of secession, even with their peculiar institutionalized vote suppression.

         

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  1. I’m in agreement with you Jason, I think.

    Perhaps one reason to codify mechanisms for secession would be to limit the potential for war.  If secession were blatantly legal, it my prevent the executive from going to war simply over secession, rather than some other issue, like slavery, that would lead to ongoing antagonization.

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  2. I’m sorry, but this just shows how important it is to keep our language precise. Obviously it’s true that the term “secession” is now used to refer to any attempt to separate one corporate entity from another of which it is a discrete part, into two corporate entities. But when we are talking about the American Constitution, then the word “secession” means one particular thing—it means the theory that it is lawful for a state unilaterally leave the union. It is not analogous to foreign constitutions, precisely for the reasons identified in Federalist 39—that the dual-sovereignty federalist system is not analogous to any other nation’s constitutional scheme. Perhaps it would be better to call it “American secession.” But the reason this is important is that secession was invented precisely to avoid questions of whether or not the Confederacy was attempting a revolution. It was invented as a way of rationalizing a state’s attempt to leave the union within the legal order of the U.S. Constitution. It is therefore backwards to say that secession—or “American secession”—is an attempt to step outside the legal order. That’s just what it is not.

    This explains why it is also wrong to say that “ultimately, ‘the law says we can’ or ‘the law says we can’t; doesn’t answer the question of whether a given secession is a justified act. To answer it, you may also have to appeal to something outside the law.” Actually, if the law allows secession, then no more justification is required—just as a person wanting to sell his car requires no further justification than that he wants to and it belongs to him. If secession is a legal right, no further rationale is required (at least, vis-a-vis the federal union). But if secession is not legal—that is when further justification is required (and in the case of 1861, is lacking). Only if it is a law-breaking act do we get to the question of whether it is nevertheless justified in some moral sense.

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    • if the law allows secession, then no more justification is required—just as a person wanting to sell his car requires no further justification than that he wants to and it belongs to him.

      This is certainly our point of disagreement.  Let’s say that the constitution of a religiously and ethnically tolerant country allows any one of its prefectures to secede by a two-thirds vote in a plebiscite.

      In one of those prefectures, 10% of the population is Jewish, and there’s been a lot of antisemitism there lately.  Now someone decides they’ve found a way to “solve” the Jewish “problem” — secede from the mother country and then enact antisemitic laws.

      What do you say to this?  I can’t believe that my whole answer to the situation must be limited to the letter of the law, or that I must pretend that the secession is a mere legal formality.

       

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      • Well, I think there we start getting into a problem that is inherent in all slavery law. And in my discussions of secession, I’ve purposely taken that law for granted, because it just gets way too complicated if you start calling that issue into question. So you could make the argument that Tibor Machan has, that the southern states were basically kidnapping the entire black population of those states. I think there’s a lot to be said for that–I basically agree with the Lysander Spooner/Joel Tiffany reading of the Constitution. But it isn’t necessary to address such questions to show that secession is an invalid theory, so I’ve stuck to that question and assumed for purposes of that question that slaves are only property. If one makes that assumption, and if one also holds that states have the constitutional right to secede, then yes, states would have as much right to secede without regard to the interests of slaves as they would to secede without regard to the interest of any other property within their jurisdiction. For instance, in California, state law provides for the creation and dissolution of “special districts,” which are political entities somewhat analogous to states. One would not consider the interests of the animals living in these districts when deciding whether or not to establish or dissolve a special district, because the law simply provides for their establishment and no other justification is required. To us it’s brutal to think that way about enslaved human beings, but if we make that assumption, we can show that secession is invalid even on its own terms, because secession is simply incompatible with the language of the Constitution. If, of course, we reject that assumption and start with the assumption that slaves are part of the “people of the United States” who not only ordained the Constitution, but are also entitled to due process of law and the privileges or immunities of citizenship, then secession is shown as even more invalid and absurd.

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      • “Now someone decides they’ve found a way to “solve” the Jewish “problem” — secede from the mother country and then enact antisemitic laws.

        What do you say to this?”

        …what am I supposed to say to it?

        “I can’t believe that my whole answer to the situation must be limited to the letter of the law…”

        Glad to know you support the Iraq invasion of 2003.  Because, y’know, there’s some things that are just wrong, and shouldn’t be allowed, and must be stopped.

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        • You’re probably expecting some kind of snarky response here.

          But I’ve thought about it, and you’re absolutely right.

          The Iraqis had no constitutional or moral right to secede from the United States.  We were therefore completely justified in using force to return them to the federal union.

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          • My point is that if you declare a letter-of-the-law action to be Nonetheless Invalid because the people who did it are icky, then you’re opening an awful big can of worms.  You can justify quite a lot by saying that an action might have been technically valid but was done for the wrong reasons or by the wrong people.  Like, say, if an area had a majority-Jewish population but felt that its needs were not being met by the central government, so the area decided to secede; clearly they’re doing this because they want to institute an oppressive theocracy and it’s our solemn duty to invade and guarantee the freedom of everyone to live according to whatever religion they choose, or none at all.

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  3. No time to say too much right now, but I’m in agreement with Jason.  I don’t think Sandefur’s argument really works, but it’s so well-stated (of course) that it would take more time and thought than I have to write anywhere near as well-stated a response.

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  4. If I understand Sandefur correctly (and I may not), since there is no way for a state to legally withdraw from the U.S. there is in fact no possibility of a state seceding, properly understood. Instead it must rebel.  Is that correct?

    The implications feel all wrong to me.  If Texas voted to secede, and the federal government just ignored them, other than to stop sending tax dollars their way, delivering mail, etc., that doesn’t seem to rise to the level of rebellion.

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    • That is correct: no state has the legal authority unilaterally to leave the union. But of course, all people retain the right of revolution. That right, however, is subject to certain limiting principles, as articulated in the Declaration of Independence, to which the Confederacy could lay no valid claim.

      The above was also the position of James Madison and Abraham Lincoln.

      While your hypothetical Texas secession might make sense, it’s obviously not what happened in 1861. There, a state that purported to have seceded chose to initiate force against the lawfully constituted federal authorities. It thereupon became the president’s duty to “see that the law be faithfully executed,” and, when necessary, to use force to accomplish this.

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      • What constitutes the departure being non-unilateral?  What sorts of majorities in the part that is leaving and the part that remains behind must need to approve of it?  In practical terms, of course, two-thirds of each house of Congress and three-quarters of the state legislatures are sufficient to amend the Constitution to say, for example, that Texas is no longer a part of this.  Smaller than that?  How small must the minority that already lives in the State of Texas as part of the US and wants to continue doing so, rather than in the Republic of Texas, have to be before it doesn’t matter?

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      • Timothy,

        I do have a few quibbles.  First, I think calling a peaceful separation initiated by the state a “rebellion” or “revolution” is rather an abuse of language, which is ironic given that you are insisting on careful use of language.  If it’s not secession, it sure as hell ain’t revolution, either, and we need a new word.  But secession, in the very root, does not necessarily smack of violence, so I think in the absence of that other word it is a far better term than rebellion or revolution for the example I gave.

        As to the south firing the first shots, that’s indisputably true (a particularly un-strategic act on South Carolina’s part), but that was one state, not all of them.   Did Virginia fire before it was fired upon? Did Louisiana? Mississippi? I don’t know the answer to those questions, but it’s relevant, since the Confederate States did not designate themselves a single country but–as their name indicates–a confederation.  Their Constitution purposely rejected the unifying language of the U.S. Constitution and reverted back to the confederal structure of the Articles of Confederation.

        And of course South Carolina taking Fort Sumter doesn’t necessarily justify forcing the quitting states back in.  Retaking and strengthening the garrison at it would have been sufficient, or demanding compensation.  Launching a full-scale war is somewhat above and beyond ensuring that the laws are faithfully executed, I would argue.

        Maybe the problem here is that our language is not rich enough–there are more possible permutations of the quitting scenario than we have words for, so we’re arguing over where the boundaries of these imperfect words are.

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  5. I mean, let’s really make it fun. Let’s say that the Gaza Strip declared autonomy and said that it was a sovereign nation in its own right.

    I don’t know that I’d be able to say anything but “sure.”

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  6. A tangent:  What if, somehow, an Amendment were ratified that explicitly permitted secession?  Would this Amendment be declared unConstitutional?

    What if two-thirds of the states decided that they didn’t like the other one-third and passed an Amendment making those areas no longer part of the United States?

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    • Constitutional amendments are by definition constitutional.  To the extent that they inescapably contradict any earlier sections of the document, those sections are of no effect anymore.  Good form demands that they be repealed explicitly, but this hasn’t always happened, and it doesn’t have to.

      Expulsion is a different question from secession, but I suspect that it would also need an amendment.

       

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        • It’s usually funny to watch ignorant people laugh and think that they know something.

          But it’s sad when they are willfully ignorant.

          We covered this subject — with you, on this blog — just a few weeks ago.  State constitutional amendments can be struck down if they conflict with the federal constitution.  Federal constitutional amendments are by definition constitutional.

          Now, you might pretend that that context wasn’t there, but you won’t be fooling anyone.

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              • Yeah, I’d say that for another couple hundred years, any world constitution that was actually ratified would have an, “American Constitutional Sovereignty Exception” clause in it… so, for everyone else, what’d be the point?

                Still, the future is long.  Someday “we” (whatever “we” are at that point) will be weak(er), and others will be strong(er).  The status of our constitution at that point is certainly not assured, though, that’s true.

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          • See, you talk about “context”, but there’s no actual context in the statement “Constitutional amendments are by definition constitutional.”  It’s just there.  If you mean “…unless we’re talking about a state constitution in which case I don’t actually mean it”, then that’s a different statement than the one you made earlier.  And it’s an important one, because you’re saying that despite what clauses and Amendments say, states don’t have the right to determine their own laws.  Which is what this whole discussion is about.

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              • If you want the will of the people and the sanctity of governing documents to be sacred, then you gotta walk that way.  You don’t get to change your mind just because someone does something you don’t like.

                Right now it seems like when there’s a legislative action you don’t like, you try to claim that some Higher Authority trumps that legislature’s legitimacy (sometimes it’s the Federal Government, sometimes it’s the US Constitution, sometimes it’s the Supreme Court, depending on which legislature and what action.)  Tenth Amendment?  Meaningless because racism.  Wrongthink doubleplusbad.

                Which is, as always, the difference between Team Blue and Team Red; which parts of the Constitution (and the Amendments) are meant to be interpreted Just As Written Because They Said What They Meant, and which parts are subject to interpretation because technology/time/evolution/science/society/feminism/whatever.

                You say “constitutional amendments are by definition constitutional”.  So what happens if, somehow, there’s an amendment passed to the US Constitution that declares welfare illegal?  You’re honestly saying that you’d consider this the expressed will of the people and live accordingly from then forth, that you wouldn’t expect there to be a challenge to that Amendment in the Supreme Couort?

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            • Density Duck,

              In reference to the state constitution, a state constitutional amendment is by definition constitutional.

              It’s only in reference to the higher authority U.S. Constitution that it might be unconstitutional; but even then, it doesn’t violate the state constitution that it’s a part of.

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  7. Actually, it is not necessarily true that federal constitutional amendments are by definition constitutional. Or at least, I consider it an open question.

    1) The Constitution itself makes clear that some amendments are unconstitutional. Article V prohibits any amendment whereby a state is deprived against its will of its equal representation in the Senate. Now, one can argue (and Amar and others have) that this provision could be repealed, and that’s fine. but without such a repeal, a mere effort to deprive a state of a senator by amendment would in fact be unconstitutional.

    2) In The Prohibition Cases, 253 U.S. 350 (1920), parties contended that the Prohibition Amendment was itself unconstitutional. Their argument was ignored by the Court, but whatever one thinks of it, it is certainly not frivolous. Their argument was: “It is ‘This Constitution’ that may be amended. ‘This Constitution’ is not a code of transient laws but a framework of government and an embodiment of fundamental principles. By an amendment, the identity or purpose of the instrument is not to be changed; its defects may be cured, but ‘This Constitution’ must remain. It would be the greatest absurdity to contend that there was a purpose to create a limited government and at the same time to confer upon that government a power to do away with its own limitations. All of the prior amendments have been declaratory and interpretative or have had relation to a power or to a subject-matter dealt with in the instrument itself…. To be valid, an amendment must have such relation to the general grant of powers and to the scope and purposes of the Constitution as will carry an implication of assent on the part of the people of the United States, springing from their adoption of the Constitution. In the case of this so-called amendment, the representatives of the people of the United States have attempted, not to amend the Constitution of the United States, but to amend the constitution of every State in the Union. If the amending function is construed as coextensive with absolute sovereignty, then the basis of our political system is no longer the right of the people of a State to make and alter their constitution, for their political institutions are at the mercy of others and may be changed against their will.”

    3) It is also a sensible argument that some constitutional principles run deeper than others. Thus I think Jeff Rosen, has a good argument in Was the Flag Burning Amendment Unconstitutional?, 100 Yale L.J. 1073 (1991), and I think there’s good reason to doubt that an amendment that repealed the 13th Amendment could be constitutional.

    Tough questions. I don’t pretend to have any firmly settled views on the matter. But as you’d probably expect, I’m drawn to the argument that the Amendment making power is not unlimited.

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    • Just going by precedent, I don’t think what I said was incorrect.  It might become so in the future, true.

      State constitutional amendments still are subject to different rules from federal ones, which was the point of the comment.

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    • I think there’s good reason to doubt that an amendment that repealed the 13th Amendment could be constitutional.

      There’s a world of difference between stupidly evil and unconstitutional.  The Constitution defines the process by which it may be amended; ergo any amendment approved through that process does amend the Constitution.  All arguments that some substantive change cannot be constitutional are based on normative end-results theorizing, and fail to come to grips with the process argument, in my opinion out of mere wishful thinking.

      The only example that’s of real interest is the deprivation of representation in the Senate. As part of Article V, it is arguably an element of the process, rather than simply a substantive outcome.  But, as Timothy notes, we could amend Article V as well. In fact we could do that in the same Amendment as we deprive Texas (who else?) of its senators.

      Amendment XXVII

      Section 1. The non-deprivation clause of Article V is hereby repealed.

      Section 2. The state of Texas shall be allowed no representation in the Senate, effective January 1, 2013.

      It’s really rather simple, because the very idea of a constitution that can perfectly bind itself for the future is non-sensical. If it doesn’t allow for amendments it will be overthrown (c.f., Articles of Confederation), or it opens itself up to allowing any element at all to be amended.  There is no middle ground.

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      • The problem here is one of entrenchment:  Just as one session of a legislature cannot bind any future sessions of the same legislature, one constitutional provision can’t really outlaw any future constitutional provisions, either.  I mean, you can say you’re doing it, and it’s a nice gesture, but it has no meaningful effect.

         

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  8. A question I don’t see being discussed in all of they theoretical musing but that I would find interesting (especially after Pat’s Wyoming post), is what would we do if a State was allowed to secede, did, and then wanted back in right after?  Because if such a Constitutional amendment passed, I could actually see some small population state like Wyoming or Oklahoma getting up for a seceding after something like the HRC passage, and then deciding out a year or two later not having other states subsidize them for things sucked ass.

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    • I would hazard a guess that no landlocked state is going to seriously consider secession unless it makes the leap alongside some others with coastline or at least a border with Canada.

      But if it did, I’d guess that we’d discover a hefty fee for re-admission.

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    • “I could actually see some small population state like Wyoming or Oklahoma getting up for a seceding… and then deciding out a year or two later not having other states subsidize them for things sucked ass.”

      Wyoming is frequently cited for this type of purpose, and is a bad choice.  In the donor/recipient of federal dollars argument, Wyoming is a “recipient” only because the federal government shares the royalties on coal/oil/gas produced from federal lands in Wyoming with the state, and those show up as “payments”.  If Wyoming had received the same treatment on transfer of public lands to the state or private ownership that, say, Kentucky got, the miners/drillers would pay those royalties (or severance taxes) directly to the state, and Wyoming would be a net donor of federal dollars.  Will Truman has written quite a bit on the subject, providing detailed sources.  I’m more fanatic about it, but he does more thorough research.

      Wyoming is also in a position to potentially do quite well as an independent.  About 40% of all the coal burned in the US to generate electricity comes from Wyoming, often shipped enormous distances (the Scherer plant in Georgia burns 10-11 million tons of Wyoming coal annually).  Large volumes of Asian goods that enter the US through Pacific ports are transported to eastern markets across Wyoming’s I-80 and the UP rail line.  Alternate routes are either much smaller or well out of the way — the South Pass across the Rockies is both easy and centrally located.  There’s a reason the Oregon, California, and Mormon Trails all crossed the Rockies there.

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        • It would depend, to some degree, on what Montana did. Montana is more firmly a beneficiary state (Wyoming is beneficiary state on a technicality – its status as a beneficiary state actually shows why the map is such a bad guide), but Medicare/SSDI recipients would likely move somewhere else so that they could continue to receive *or* would continue to receive money from the USA anyway (I’m not sure how the law handles Social Security recipients abroad). And often overlooked in a lot of these talks is the federal government spending money on the states that the states simply wouldn’t spend on their own. So I suspect that Montana would look things over and figure out whether they would be better off allying with Wyoming or the rest of the US.

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          • Under current statute, US citizens eligible for Social Security benefits may receive them while living abroad.  Generally speaking, Medicare benefits are not currently available outside of the US and its territories.  Certainly an independent Wyoming is going to have to make decisions very early on about how it handles health care, public pensions, and so forth.  Secession would be more complicated than it would have been 100 years ago, simply because more federal programs exist today.  Assuming that super-majorities are required on both sides for secession to happen, it is unlikely (at least in my mind) that Wyoming could achieve the necessary number of votes if the secession movement’s platform is that there will be no public pension program, no subsidized health care for the elderly, etc.

            Given somewhat comparable programs on both sides of the border, and the presumption of a peaceful separation, most of the details would appear to be a matter of accounting and some asset transfers.

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        • Well, it might be an interesting stand-off :^)  The federal government announces whatever — some set of trade conditions intended to gauge Wyoming (or worse).  Wyoming, presumably now an independent country, counters by shutting down coal shipments, oil and natural gas pipelines leaving the state, and transit of goods along the South Pass routes.  Within a month — and probably less, because few power plants stockpile 30 days worth of coal any more — the 25% of electricity generation in the Eastern Interconnect powered by Wyoming coal and gas goes off line.  Rolling blackouts become common east of the Mississippi.  California screams because Asian goods offloaded at their ports are piling up, unable to reach markets east of Wyoming because of bottlenecks on alternate transportation routes.  Observing the treatment Wyoming is getting and fearing what might happen to them in the future, Montana, Idaho and Utah announce that they stand with Wyoming.  Washington, DC threatens military action.  OPEC, in a show of solidarity with the small energy-exporting nation of Wyoming, threatens an embargo.  Texas announces that they don’t give a damn about Wyoming, but are going off on their own…

          There’s a political thriller novel in here somewhere.  Hmm, national novel-writing month isn’t until November…

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  9. Aside from that, I agree with Sandefur that the U.S. Constitution does not permit secession. I think it’s very clear on that point right now, and indeed it was clear (although slightly less so) in 1860.

    Eh….this looks pretty weak to me. The Guarantee Clause says, “The United States shall guarantee to every State in this Union a Republican Form of Government.” The obvious interpretation of this is that the US doesn’t get to change over to some other form of government, not states shall be barred from seceeding. This is about the obligations of the United States, not the obligations of the individual states.

    The argument from the Privileges and Immunities Clause is a bit stronger, in that it’s not clearly wrong, but it’s not clearly right, either. It’s a very weak implication. I think that if it had been intended that secession be disallowed, this would have been spelled out explicitly, as it was in the Articles of Confederation and Perpetual Union.

    Really, I find it hard to believe that this didn’t come up at all during the Constitutional Convention or the ratification debate. Surely there must be some contemporary commentary on the issue?

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    • Brandon,

      I can’t claim to be a true expert in this field (I’m not a historian), but since I cover the creation of the Constitution and the Civil War briefly each semester in my American Gov’t class, I’ve thought about this quite a bit and looked into it a little bit.  So use that as context for evaluating how much confidence you’re willing to place in what I say.

      The Articles of Confederation explicitly stated that each state retained its full sovereignty and independence–the U.S. at the time was clearly a confederation of independent states, not a single country.  The aims of Madison and Hamilton in promoting a new constitution was to unify them into a single country to prevent them from dissolving–in addition to domestic insurrections like Shay’s Rebellion, different states were seriously contemplating war against each other for various offenses.  Hamilton wanted a much stronger structure for unity than we got, and while Madison was ultimately satisfied, his initial proposal would have given the federal government a veto over state government legislation, which would have been a clear indication that it was supreme over the states.

      But each of the delegates at the convention was there as a representative of his own state’s interests, and there wasn’t really strong support for that level of national unity.  And since each state had to agree to ratification, making such a strong statement would almost certainly have led to the Constitution’s rejection.

      So the lack of statement about whether states retained true sovereignty and independence, whether quitting the union was possible, or whether the federal government was supreme over the states was a way of punting on a question that would have resulted in failure of their project.

      I take that to mean that the Framers and ratifiers did not make a definitive statement on the matter–it simply wasn’t answered. An alternative argument is that they could have explicitly put in a secession clause and purposely didn’t, so therefore secession was clearly disallowed.  That’s a good argument from a standpoint of legal interpretation, so it’s a favorite of lawyers.  Unfortunately lawyers are often too legalistic in their education, and don’t get a better historical and org theory education, so they miss the underlying dynamic–they miss that a failure to state principle X may not mean not-X was agreed upon, but that no agreement was possible between the Xers and Non-Xers.

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      • <<each of the delegates at the convention was there as a representative of his own state’s interests, and there wasn’t really strong support for that level of national unity.>>

        Actually, when reading the Philadelphia convention debates, one is struck by the strong consensus in favor of national unity and against the idea of representing the states’ own interests. So far as I recally, only Luther Martin (who, not accidentally, later was mentor to the young law student Roger Taney) spoke up in defense of state sovereignty. Wilson, Madison, Hamilton, and others quickly put him down. Wilson, for example:

        The states were not ‘sovereigns’ in the sense contended for by some. They did not possess the peculiar features of sovereignty,—they could not make war, nor peace, nor alliances, nor treaties. Considering them as political beings, they were dumb, for they could not speak to any foreign sovereign whatever. They were deaf, for they could not hear any propositions from such sovereign. They had not even the organs or faculties of defence or offence, for they could not of themselves raise troops, or equip vessels, for war…. If the states, therefore, retained some portion of their sovereignty [after declaring independence], they had certainly divested themselves of essential portions of it.

        This point was repeatedly made in the ratification debates as well, most notably between Madison and Hamilton in the Richmond Convention, but also in other conventions, even South Carolina’s. And, of course, the basic theme of the entire Federalist is that the treaty-style Articles are a failure. The first 10 numbers (and many others) are wholly devoted to the importance of national unity over state interests. In short, the general public well knew that they were adopting a revised system of national sovereignty, and they made that choice. The idea that there was not broad support for national unity over states’ rights during the period from 1787 to 1830 is an historical revisionist myth that was devised by southern apologists and their allies, a sort of parallel to the “lost cause” school of historiography that we are still only beginning to overthrow.

        <<And since each state had to agree to ratification, making such a strong statement would almost certainly have led to the Constitution’s rejection.>>

        On the contrary, the Constitution’s supporters were quite explicit about what they were doing. Federalist 10; Federalist 15; Federalist 39; Madison and Henry’s exchange at Richmond; Wilson–Wilson never stopped talking about it. And the opponents of the Constitution were quite clear that they understood what ratification would mean for national and state soveriegnty; Henry, “Brutus,” and others screamed loudly that the Constitution would create a sovereign national union. Nevertheless, the Constitution was ratified. It was only in the 1830s, with the rise of the Nullification Movement, that efforts (largely successful) were made to re-cast the history of his period to make it look like (a) the Constitution didn’t really make a sovereign federal union, or (b) if it did, it was accomplished through some sort of legerdemain.

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        • the strong consensus in favor of national unity and against the idea of representing the states’ own interests.

          Yeah, ultimately there was a consensus on that among the convention delegates, but they still had to pay attention to what the folks back home would think about it.

          And let’s not forget that the debate that nearly brought the whole thing to a screeching halt, representation in Congress, was explicitly and solely about states’ interests.

          And of course the delegates from New York who weren’t named Hamilton were there as spies for Governor Clinton and left early to go poison the well in one of the most critical states.

          And the arguments against state sovereignty were a bit disingenuous. Several of the states did have their own militaries, at least one did ratify the peace treaty individually, all coined their own money, and several were seriously talking about going to war with each other, whatever the words on paper of the Articles might have said. Heck, during the Revolutionary War Washington was criticized by some delegates to the Continental Congress for demanding the troops swear allegiance to the U.S, rather than their own states.

          The idea that there was not broad support for national unity over states’ rights during the period from 1787 to 1830 is an historical revisionist myth that was devised by southern apologists and their allies, a sort of parallel to the “lost cause” school of historiography that we are still only beginning to overthrow.

          You’ve misread me. I’m not claiming there was no support for national unity; I’m saying there was a real divide, and the question of just how much unity–because there were many possible degrees of it–was a very serious question.  Madison’s congressional veto over state legislation was rejected precisely because that was more national unity than they were willing to accept–we have a federalist system not because they objectively thought it was the wisest design, but because moving toward a unitary system was beyond what was acceptable to the states.

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      • I get that the Framers might have wanted to dodge the question, but it seems odd to me that the state governments, in deciding whether to ratify the Constituiton, wouldn’t have asked for a clarification on this point.

        An alternative argument is that they could have explicitly put in a secession clause and purposely didn’t, so therefore secession was clearly disallowed.  That’s a good argument from a standpoint of legal interpretation, so it’s a favorite of lawyers.

        I understand that you’re not necessarily endorsing this, but this is precisely the sort of reasoning the Ninth and Tenth Amendments were intended to rebuke. The federal government has only the powers explicitly delegated to it, while the states and people retain any rights and powers not explicitly revoked by the Constitution.

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