Saturday, January 19, 2008

How to Think about Secession


At the risk of being called a "Doughface libertarian," which I am not, I must express some reservations about Timothy Sandefur's paper, "How Libertarians Ought to Think about the U.S. Civil War."

Sandefur avers that "the Constitution does prohibit secession"; therefore, the States do not have the power to secede under the Tenth Amendment, which says:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
But the Constitution nowhere expressly prohibits secession. Sandefur's argument that the Constitution does prohibit secession is an inferential one that rests on his conclusion that the action of a State (qua State)
cannot change the nature of the federal Constitution as adopted in 1787: it is a binding government of the whole people of the United States. No state may unilaterally leave the union.
Actually, the people of the each State were at liberty not to adopt the Constitution. The Constitution could have gone into effect upon being ratified by the conventions of nine of the thirteen States:
The ratification of the conventions of nine states, shall be sufficient for the establishment of this constitution...
In which case, however, the Constitution would have been binding only upon the States whose people ratified it; that is,
...between the states so ratifying the same.
That the people of all thirteen States did, eventually, ratify the Constitution is another matter. Four of the States could have remained outside the Union; that is, they could have "seceded" preemptively.

How could a State have the right to decline membership in the Union but not to withdraw from membership in the Union? Was the act of ratification equivalent to a Christian marriage vow (before Henry VIII)? It would seem so, according to the U.S. Supreme Court, which in Texas v. White (1868) anticipated Sandefur's arguments; for example:
When...Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. 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.

Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union.
But such fine reasoning, which echoes the pre-Civil War position of Union loyalists, did not prevent the secession (or rebellion) of eleven States. It would have been bad -- bad for slaves, bad for the defense of a diminished Union -- had the South prevailed in its effort to withdraw from the Union. But the failure of the South's effort, in the end, was due to the force of arms, not the intentions of the Framers of the Constitution. Justice Grier fully grasped that point in his dissent from the majority in Texas v. White:
Is Texas one of these United States? Or was she such at the time this [case] was filed, or since?
This is to be decided as a political fact, not as a legal fiction. This court is bound to know and notice the public history of the nation....
It is true that no organized rebellion now exists there, and the courts of the United States now exercise jurisdiction over the people of that province. But this is no test of the State's being in the Union; Dacotah is no State, and yet the courts of the United States administer justice there as they do in Texas. The Indian tribes, who are governed by military force, cannot claim to be States of the Union. Wherein does the condition of Texas differ from theirs?... I can only submit to the fact as decided by the political position of the government; and I am not disposed to join in any essay to prove Texas to be a State of the Union, when Congress have decided that she is not. It is a question of fact, I repeat, and of fact only. Politically, Texas is not a State in this Union. Whether rightfully out of it or not is a question not before the court.
Legalistic arguments about secession are irrelevant, even if they are intellectually entertaining. Secession is a political issue, and as Clausewitz said, "war is the continuation of politics by other means." In paraphrase of Stalin, I ask: How many divisions does the Supreme Court (or a blogging lawyer) have?

For a deeper analysis of secession, see "How Libertarians Ought to Think about the Constitution."