Is secession legal? Our answer may surprise you
Our belief is that secession, as is currently being debated in several U.S. states, is an independent act by the people of the states not forbidden by the Constitution.
Undercurrents of secession have eddied to the surface in the U.S. over the last several months, sparking the old debate yet again as to whether or not secession is legal. It isn’t as settled an issue as you may believe. (Photo: Miguel Gutierrez Jr./The Texas Tribune)
In 2012 all fifty states offered petitions to the U.S government to leave the Union. At the time, the legality of secession was front page news and the occasional subject of discussion on cable news. The question then and now is: Can a state legally secede from the Union? Many, including Supreme Court justice Antonin Scalia, suggest “no.”
In a 2006 letter, Scalia argued that the question was not in the realm of legal possibility because 1) the United States would not be party to a lawsuit on the issue, 2) the “constitutional” basis of secession had been “resolved by the Civil War,” and 3) there is no right to secede, as the Pledge of Allegiance clearly illustrates through the line “one nation, under God, indivisible.”
Scalia is not the first Supreme Court justice to establish this position. In the case of Texas v. White in 1869, Supreme Court Chief Justice Salmon P. Chase wrote that, “The union between Texas and the other states was as complete, as perpetual, and as indissoluble as the union between the original states. There was no place for reconsideration or revocation, except through revolution or through consent of the States.”
The majority opinion struck down the Texas Ordinance of Secession, calling it “null,” and crafted a decision that rendered all acts of secession illegal according to the “perpetual union” of both the Articles of Confederation and subsequent Constitution for the United States. Chase did leave an opening, “revolution or the consent of the States,” but without either, secession could never be considered a legal act.
The Texas Tribune, a left-leaning online publication, has tried to put to rest any notion of Texas seceding in several articles over the last few years. However, the only authority they can cite for a contention that secession is illegal is Chase’s majority opinion and Scalia’s vapid denials.
The arguments against legal secession are generally based on both a historical concept of the Union and the language of the Constitution itself. In the Texas v. White decision, Chase began his legal challenge to secession with a historical discussion of the Union.
He suggested that the Union predated the states and grew from a common kindred spirit during the years leading to the American War for Independence. This “one people” mentality was best articulated by Supreme Court Justice Joseph Story in his famous Commentaries on the Constitution of the United States.
Story, who channeled John Marshall and Alexander Hamilton, reasoned that the Constitution was framed and ratified by the people at large, not the people of an individual state. Thus he held the same legal position of a state itself formed from many counties.
“The constitution of a confederated republic, that is, of a national republic, formed of several states, is, or at least may be, not less an irrevocable form of government, than the constitution of a state formed and ratified by the aggregate of the several counties of the state.” In one sentence, Story reduced the states to the status of a county, shire, or province, and this general argument was used as a hammer both during Reconstruction and after against the sovereignty of the states.
That particular aspect of his legal opinion was destroyed by Great Britain’s withdrawal from the European Union on January 1, 2020 following a vote the previous June. Great Britain had been part of the EU since it was formed in 1993 and was part of the preceding organization, the European Communities, for exactly 47 years, to the day of it’s departure.
Formed from the 28 independent and sovereign countries of Europe, the EU began losing the confidence of Great Britain in the recession of 2008. Other issues included sovereignty, immigration, the economy and anti-establishment politics, amongst various other influences. The result of the referendum was that 51.8 percent of the votes were in favor of leaving the European Union.
Still, other points in Story’s argument have continued to be used to discredit recent talks of secession. As did Chase in 1869, Story claimed the term “perpetual” found in the Articles of Confederation, deemed the Union indissoluble. Chase surmised that the Constitution simply made the Union “more perfect” while Story suggested that the Constitution superseded the Articles of Confederation but did not change the permanent and “perpetual” nature of the Union.
Story further defended his position with the “Supremacy Clause” found in Article VI of the Constitution, which states that all laws or treaties made “in pursuance of the Constitution” were the “supreme law of the land,” and he pointed to the letter sent by the Philadelphia Convention accompanying the Constitution to the state ratifying conventions that the Constitution aimed at a “consolidation of the Union.” Hence, to Story and Chase, the Union continued to exist in an altered — i.e. consolidated — form and could not be dissolved.
Another argument against secession centers on the language of Article I, Section 10, which declares that “No state shall enter into any treaty, alliance, or confederation … ” To proponents of this position, Article I, Section 10 unequivocally shows that the states which formed the Confederate States of America were in clear violation of the Constitution, thus invalidating their government and the individual acts of secession which led to it.
Ironically, this is the same Article and Section current Texas Gov. Gregg Abott (R) uses to cite his authority to take the broken border issue into his own hands, arguing that the Biden administration has abandoned it’s responsibilities to enforce immigration law. Therefore, Texas has the right, under Article I, Section 10, to close the border on its own.
Abraham Lincoln indirectly defended this position by declaring the seceding states were in “rebellion” and therefore still members of the Union. The Constitution, then, was still legally enforceable in those states, including Article I, Section 10. Biden has made similar claims about Abbott’s unilater action.
Governor Greg Abbott has issued a series of orders to the Texas Department of Public Safety (DPS) and Texas Military Department (TMD) since 2022 to expand their unprecedented efforts to combat the growing illegal immigration along the Texas-Mexico border. Once again, the clash with the federal government has sparked talk of secession in Texas and other states. (Photo: Gena Rollins/Dallas Morning News)
Finally, some will concede that the original thirteen states may have an argument for secession due to the Declaration of Independence and Thomas Jefferson’s language establishing thirteen “free and independent states.” But the other thirty-seven, formed at least in part through the common territory of the United States, have no claim to secession.
Those were not states until Congress granted them statehood — elevating them from territorial status — and consequently never constituted a sovereign legal entity, Texas and Hawaii to the contrary (though even Chase suggested that Texas lost its sovereignty when it joined the Union in 1845).
These arguments seem like a fairly strong case against secession. Three Supreme Court justices, one famous president, a bloody war, and the language of a modern pledge of allegiance offer conclusive proof that secession, while an entertaining philosophical exercise, has no legal basis.
Their various opinions and conclusions, however, all have gaping holes.
Scalia’s positions are the most lifeless and dull — not an easy thing to say about any reasoning put forth by the man who is arguably the greatest Supreme Court justice in history.
Nonetheless, our belief is that secession, as accomplished by the Southern states in 1860 and 1861 and as discussed by the North at the Hartford Convention in 1815, is an independent act by the people of the states. It is accomplished in the same fashion as the several conventions that occurred throughout early American history.
In fair disclosure, the Hartford Convention rejected recession. Instead, led by members of Congress in the Federalist party, they drafted constitutional amendments strengthening state controls over commerce and militias. As Congress received the Hartford Convention’s proposals, news arrived of the American victory in New Orleans and the signing of the Treaty of Ghent. The Federalist Party soon waned in power and the amendments were never considered.
Scalia suggested that the Department of Justice (DOJ) would never consider being party to a lawsuit against seceding states. It is our position the United States would never be a party to a lawsuit in the first place. The reason is, secession, either de facto or de jure, is an extra-legal act of self-determination.
Once the States have seceded from the Union, the Constitution is no longer in force in that state. This same rule applies to the Article I, Section 10 argument against secession. If the Constitution is no longer in force — the States have separated and resumed their independent, sovereign status — then the Supreme Court would not have jurisdiction and therefore could not determine the “legality” of the move.
The Union, then, through a declaration of war could attempt to force the seceded States to remain, but even if victorious that would not solve a philosophical issue. War and violence do not and cannot crush the natural right of self-determination.
A war cannot change the law. It can muddle the picture and force the vanquished into submission so long as the boot is firmly planted on their collective throats, but a bloody nose and a prostrate people settles nothing. The prima facia evidence of that is the bitterness, anger and strong regional identity retained even today in the South. It is the direct result of the war’s outcome 159 years ago.
Add in the difficulties created in the South by the victor’s "waving the bloody shirt” approach to restoration of the rebellious states and you understand why six generations of Americans have continued to fight the Civil War at some level or another, up to but not usually including physical force or small arms fire.
Oliver Ellsworth of Connecticut said in 1788 that he feared a “coercion of arms,” such as that seen in the Civil War, in relation to a delinquent state. “This Constitution does not attempt to coerce sovereign bodies, states, in their political capacity. No coercion is applicable to such bodies, but that of an armed force. If we should attempt to execute the laws of the Union by sending an armed force against a delinquent state, it would involve the good and the bad, the innocent and the guilty, in the same calamity.”
Ellsworth recognized, as did the majority of the founding generation, that force did not destroy sovereignty. It created artificial supremacy, but sovereignty, the basic tenant of the Founders and Framers, could not be surrendered at the point of a sword or the barrel of a rifle.
Sovereignty, in fact, cannot be surrendered at all. It can be delegated, as in the powers granted to the general government in Article I. But it can never be surrendered.
Scalia’s “Pledge of Allegiance” analogy is the most absurd argument of the bunch. The modern pledge was written by Francis Bellamy, a socialist minister who wanted to indoctrinate American schoolchildren with a nationalist message, one based on the “great speeches” of Daniel Webster and Abraham Lincoln in relation to the “One Nation which the Civil War was fought to prove.”
Sprinkle in some “liberty and justice” from the French Revolution and you have a message that any good leftist nationalist can embrace. The founding generation would not have said such a pledge, if for no other reason that most did not view the United States as a “nation” in the strict traditional sense of the word, a single people.
To be clear, we are not condemning the Pledge of Allegiance. It has become a solid statement of commonality among the people of free, sovereign states willingly maintaining what should be a loose, comfortable national identity gently governing in a limited, unintrusive manner. We all know that is no longer how Congress and the White House govern.
The other issues involved in the debate are slightly more complicated, but in several instances come back to Scalia’s more simplistic analysis. In the Texas v. White decision, Chase implicitly reasoned that the Union was an “indissoluble” contract between the “American people” and the federal government, or in that case the people of Texas and the federal government.
All contracts are intended to be perpetual. But if this were the case, it would have been impossible for only nine States to ratify the new Constitution while four States remained part of another Union. Not only would it defeat the purpose of the, at the time, self-limiting, government, it would also have been in clear violation of the language of the Articles of Confederation.
The phrase “perpetual union” in the Articles of Confederation, which the Constitution superceded, was key to the flawed Texas v. White decision by SCOTUS in 1869 and subsequent claims that secession is somehow illegal under U.S. laws and tenets. (Photo: Courtesy Ben Franklin Museum/Phladelphia, PA)
Provision of that document required the consent of all thirteen States, not nine, and thus the Constitution itself can be viewed as an act of secession, from the old Confederation to the new federal government.
Moreover, James Madison argued that the new Union was a different type of contract. “We are not to consider the Federal Union as analogous to the social compact of individuals: for if it were so, a majority would have a right to bind the rest, and even to form a new constitution for the whole … ”
The Constitution was therefore framed by the unanimous consent of the States present in convention assembled in Philadelphia, but it had no teeth until the States, in convention, ratified it. Even at that point, Madison suggested, the States could not bind the rest into accepting the document or remaining in the Union. The Constitution does not have a coercive principle, as Ellsworth called it. An “indissoluble” Union would suggest that it does.
As it happened, North Carolina did not ratify the Constitution until November 1789, eight months after the new Constitution took effect, President George Washington was sworn into office and Congress met in its first session of two years, all beginning in March. Nonetheless, North Carolina enjoyed the full rights and privileges of a full-fledged state from the beginning, except for having representation.
It did not seat two senators and five members of the House until after the state legislature ratified the Constitution. North Carolina was not officially a full-fledged state until the time of ratification. It was treated as U.S. territories were eventually treated before becoming states.
Another well-framed argument is that waging war “against them (the States)” is an act of treason, and as per the Constitution, a State can only be “protected” by the central government on the application of the legislature or the executive in the case of invasion. Had warlike acts been taken by a foreign power against North Carolina prior to ratification, it would essentially have been on it’s own.
Even so, Lincoln violated both constitutional safeguards against coercion by the central government in 1861. His reasoning was that the states remained in the Union despite their secession declarations to the contrary. If not, war required a declaration from Congress, something Lincoln did not have.
By declaring war, Congress would have recognized the Confederate States as a legitimate — and foreign — government. That would have defeated Lincoln’s logic. Therefore, he violated the Constitution, thus rendering the “bloody nose” argument against secession void.
The “one people” argument was dissected by John Taylor of Caroline and Abel P. Upshur in their respective commentaries on the document. In his New Views of the Constitution of the United States, Taylor contended that the continuity between the Articles of Confederation and the Constitution reinforced the sovereignty of the states.
He declared that, “There are many states in America, but no State of America, nor any people of an American state. A constitution for America or Americans, would therefore have been similar to a constitution for Utopia or Utopians.”
This view is in sharp contrast to Chase, who argued that continuity maintained a “perpetual” Union. Taylor wrote, “This construction bestows the same meaning upon the same words in our three constituent or elemental instruments and exhibits the reason why the whole language of the constitution is affianced (literally, “engaged to be married”) to the idea of a league between sovereign states, and hostile to that of a consolidated nation.”
Upshur was more direct in his defense of both nullification and secession as a right of the sovereign States. Published as a direct attack on Story’s polemic, Upshur’s A Brief Enquiry into the True Nature and Character of Our Federal Government is perhaps the last great commentary of the antebellum period.
Upshur decried the “imaginative construction” of people like Story and Webster and insisted that consolidation was never the aim of the Constitution. In defending the right of the States to control the government and “interpose” their sovereignty to curtail central authority, Upshur said:
“The checking and controlling influences which afford safety to public liberty are not to be found in the government itself. The people cannot always protect themselves against their rulers; if they could, no free government, in past times, would have been overthrown. Power and patronage cannot easily be so limited and defined as to rob them of their corrupting influences over the public mind.”
It is truly and wisely remarked by the Federalist, that “a power over a man’s subsistence is a power over his will.” As little as possible of this power should be entrusted to the federal government, and even that little should be watched by a power authorized and competent to arrest its abuses. That power can be found only in the states. In this consists the great superiority of the federative system over every other.
In that system, the federal government is responsible, not directly to the people en masse, but to the people in their character of distinct political corporations: The States. However easy it may be to steal power from the people, governments do not so readily yield it to one another. The confederated states confer on their common government only such power as they themselves cannot separately exercise, or such as can be better exercised by that government.
They have, therefore, an equal interest, to give it power enough, and to prevent it from assuming too much. In their hands the power of interposition is attended with no danger; it may be safely lodged where there is no interest to abuse it. This is precisely how the Founders and Framers saw the new union.
During the Philadelphia Convention of 1787, Gouverneur Morris of Pennsylvania outlined “the distinction between a federal and a national supreme government; the former being a mere compact resting on the good faith of the parties, the latter having a complete and compulsive operation.”
If the Constitution established a federal government, and it did, then the Constitution did not have a “compulsive operation.” No state could be bound unwillingly to that government, as that would violate the tenet of “the consent of the governed” that is one of the key founding principles of this nation, dating to the Declaration of Independence.
Despite mid-19th Century SCOTUS rulings and various scholarly opinions to the contrary, the Founders and Framers did not prevent dissolution of a State’s commitment to being part of the U.S., preferring to sovereignty of each State to a strong central government. (Painting: Signing of the Constitution/Howard Chandler Christy/Courtesy, National Constitutional Museum)
In essence, the people of the states in convention could either interpose their sovereignty to arrest the acts of the general government or withdraw from the Union. Morris, a nationalist, recognized that the states still held sway when he suggested that the Constitution be voted on by state and that the states, not a consolidated people, had to ratify the document.
The Constitution as ratified in 1787 and 1788 is “a mere compact resting on the good faith of the parties.” That compact can be unilaterally broken at any point by the same people of the States which ratified it.
Neither the Framers nor the ratifiers believed that the Constitution created a “consolidated nation” as Story suggested. It was argued in all state-ratifying conventions that the opposite was true. The Union was made “more perfect” but never consolidated. The words in the Preamble were carefully chosen to that reason.
The States still had all powers not delegated to the general government, as the Tenth Amendment to the Constitution clearly illustrates, and every State proposed a “Tenth Amendment” in their suggested bill of rights in the months after ratification.
John C. Calhoun wrote that, “I maintain that sovereignty is in its nature indivisible. It is the supreme power in a state, and we might just as well speak of half a square, or half a triangle, as of half a sovereignty.”
In other words, delegated powers were still retained by the people of the States at large for their exercise if they chose to rescind that delegation. Sovereignty can never be divided or surrendered in part. If the states had it in 1776 as Jefferson wrote, then they maintain that sovereignty to this day.
This entitles them to the right to exercise that sovereignty through an act of interposition — an opposition of the Sovereignty of the State against that of the Federal Government. Failing at that effort, they can then decide if they will vote at the state legislative level — doing the will of the people — to secede.
As for those who suggest that a state carved from the common property of the United States does not have the same sovereignty as the original thirteen states, Jefferson made clear in his Northwest Ordinance of 1787 that new states would enter the Union on “equal footing” with the existing states, meaning that they had the same rights, privileges, and immunities as the original thirteen, including the right of interposition and withdrawal.
Jefferson himself authored the Kentucky Resolutions of 1798, a clear indication that he believed as much. Kentucky was not one of the original states, but the people of Kentucky had the same right of recourse that the people of Virginia had in opposing the unconstitutional Sedition Act of 1798. If the argument against this position is correct, then the original thirteen states, themselves pared from the territory of Great Britain, would be illegal and illegitimate. That is not the case.
We as a nation have come to the tipping point between an absolute central government vs. the sovereignty of the states. Secession and interposition are healthy discussions to have in a federal republic. Their mere threat can, and has, spurred the central government to reform.
Today, the American people are not ready for secession. The states, the economy, and the people are too dependent on the central authority. If nothing else, Hamiltonianism has accomplished slavish loyalty to the federal system. It is to the determent of the success of the United States.
Yet, perhaps following the lead of John Dickinson of Delaware would be appropriate at this critical juncture in American history. Americans as a whole recognize that the debt is excessive, America is virtually bankrupt, and the central authority is out of control. Secession is a manifestation of the fear that the situation will not improve. Perhaps that is the case, but Dickinson faced the same situation in the 1770s.
Often called the “Penman of the Revolution” for his famous Letters from a Farmer in Pennsylvania, Dickinson understood that a final break with the crown may occur, but he urged his fellow colonists to be cautious and explored every avenue for a peaceful resolution to the difficulties facing the colonies through 1775 and argued against separation in 1776.
His was a conservative constitutional defense of the “ancient constitutions” of Great Britain. He recognized that Great Britain had the authority to regulate trade but insisted that local issues be directly handled by the colonies, including the right of taxation. During the Philadelphia Convention of 1787, he argued against nationalist innovations that would destroy the traditional relationship between local and central authority so long forged in America. Alterations could and should be made, but the federal union had to be maintained.
Even so, the energy being placed in the secession petition movement would be more productively utilized in calling for conventions to amend the Constitution. For the last eight years. Those calling for secession should consider becoming active in the Convention of States Project. The organizaton has been pushing for an Article V convention to consider a half dozen amendments.
Opposition to the Article V convention have put out several false claims about it, including that it would throw the Constitution wide open to a complete rewrite. That simply isn’t true. Thus far, 19 states of passed an Article V resolution and 14 more are to consider such a resolution this year. If they pass the resolutions, one more state will be needed to force an Article V convention.
Only those half dozen amendments proposed can be considered. They are: Requiring the states to approve any increase in the national debt, imposing term limits on Congress, restricting the scope of the Commerce Clause, limiting the power of federal regulations, requiring a supermajority to impose federal taxes and repealing the 16th Amendment (federal income tax) and giving the states the power to abrogate any federal law, regulation, or executive order by the same three-quarter majority necessary to approve those amendments if the Article V convention approves them.
Perhaps limiting the president to one term, as the Hartford Convention proposed in 1815, requiring a two-thirds majority to borrow money, or creating a committee of states to act as a final check on the constitutionality of federal measures could be beneficial alterations to the Constitution as well.
The founding generation would certainly agree that changes could and should be made through the amendment process. They did so twelve times, including the Bill of Rights. They and the current generation certainly would not want to see another violent, bloody, brother-against-brother civil war that would only further divide the nation and create even more angst, bitterness and regional rivalry.
All constitutional methods should be exhausted before the American principle of self-determination is invoked, but if conventions are called, and they must be at this point, all options should then be on the table. If an Article V convention should somehow fail to render the changes necessary, perhaps the vastly divided ideologies of the so-called Red and Blue states would then dictate a split. Such a decision cannot be made lightly.
We should consider be the Dickinsonian solution to the problem. “Experience,” he said in 1787, “must be our only guide. Reason may mislead us.”