If you’ve read “Secession is Constitutional,” you know that unilateral secession of a state from the US Union is constitutional. That article explains why the federal government doesn’t have authority to ban secession, so there is no need for secessionists to promote a Constitutional amendment to keep secession constitutional. But what if the Constitution were amended to do the opposite: to state that secession is forbidden? Even this kind of amendment would not have the authority to make secession unconstitutional. Here’s why:
Necessary Background: state sovereignty
A timeless need of people in general is the need for collective action, at least to protect their group from other groups. One of the problems of politics is the question of how the decisions of some people can rightfully bind the actions of those who disagree. The classical liberal (libertarian) or Anglo Enlightenment answer is the American answer: political communities form when people consent to be bound by the decisions of their group. In any large group of people, those decisions are made by government. When the group has control over a territory, the only way to not be bound by the community’s law is to emigrate, because the group protects itself from free-riders and criminals within its territory.
The 13 colonies each won their own individual independence and established their own sovereignty through the war of 1775-1781. No group of states had authority over any other state. This is documented in The Declaration of Independence (1776) and the Treaty of Paris (1783). This DoI has the status of “organic law,” which is to say a binding document that establishes or “organizes” an organization, such as a government. Organic law has special authority when each member (of the Union) consents to it, as is the case in US organic law. The US allowed no enforcement arm at all to a central government until 1789, when the Constitution went into effect.
When the sovereign states agreed to temporarily delegate some of their powers (sovereignty) to a federal government via the Constitution, they did so without the idea that the decision was irrevocable, and without eliminating their own sovereignty. In fact, in NY, Virginia, and Rhode Island, the ratification documents by which states consented to the US Constitution explicitly stated that …the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury or oppression.”
Neither the passage of time, nor the give and take between states, has changed the de jure status of these states. And according to the Constitutional doctrine of “equal footing,” states that subsequently joined the Union have the same rights and sovereignty as the original states.
The Answer
Now we can explain why the Union doesn’t have the authority to ban secession. The only reason certain kinds of actions of a majority of the states are binding on the minority of the states in the Senate is because of the consent of each and every state to be so bound, when they acceded to the Constitution. An action to ban secession is not one of the kinds of actions that states consented to. We know this because it’s not in the constitution they agreed to. Indeed, they consented to a constitution that gives each branch of the federal government a list of powers, but banning secession is not listed as a power. That means that the power to secede is still reserved to the states in the Bill of Rights in the 10th Amendment. The Bill of Rights had been promised to each state before they consented to the Constitution.
A Constitutional amendment cannot fix that lack of authority, because Constitutional amendments only require consent of ¾ of the states, not unanimity. Yes, the states consented to a constitution that can be amended, but only because they knew they could secede if it were amended horribly. If the Constitution were to be amended to ban such an exit, it would have to give the states a few months to decide whether to withdraw their membership in the Union before the amendment takes effect. This is because banning secession is a wholly different kind of amendment than any other, since it alters the understanding states had when they consented that they could exit if they don’t like an amendment or a federal action.
Since our Constitution can’t gain the authority to make secession illegal, then consider how much less can the opinion of federal judges do so. The only rightful authority they’ve been given comes from the powers delegated to them by that same Constitution.
Some would argue that if a Constitutional amendment were unanimously approved, it would be binding on all, but I guess some would argue that the population of the state would be different decades later, as each generation is replaced by a younger one.
The Right of Revolution
Naturally, the people of any state have the right of revolution (self-determination or self-government) according to the Declaration of Independence. Even consent to be bound by Constitution while in the Union is not consent to be bound by it when out of the Union.
Fundamentally, what nation your town belongs to is a political or military question, not a legal question. That’s why the boundaries of the US are not delineated in the Constitution, and why the Constitution doesn’t arrogate to itself the right to list what states are, or must be, members of the Union. No state has been added to the Union via a Constitutional amendment. Law is for people who are under a government’s jurisdiction, not people outside. It’s interior, not exterior. For example, after WWII, some imperial possessions (territories) of European powers were granted independence without war, but some fought their way out. Does the US refuse to recognize the independence of a single one of those countries because they didn’t follow a constitutional process (if any) in the European power’s law? No. The question isn’t whether they followed law. The question is whether their government has a persistent monopoly on the use of force in their territory. It’s a recognition of fact, not a statement of approval. The Polish people didn’t have a state from 1795-1918. Did Poland follow the constitutional processes of their imperial overlords (Russia, Austria, Germany) to become independent in 1918? No—but their independence was recognized because their overlords had been defeated in WWI by 1918.
Application to Today
The only reason constitutionality matters is because it affects how the federal government can legally treat secessionists BEFORE secession is completely effected, or afterwards in its remaining territory. There is no law or penalty in law against peaceful secession, or advocating/organizing such. We’ve argued that there can’t be, because such a law would be unconstitutional.
In Texas v. White (1868/1869), an aspiring Yankee Republican politician, US Supreme Court Chief Justice Salman Chase, declared, after the North had just fought a bloody war, that Texas had never left the Union, nor could it have, without “revolution, or consent of the states.” (Decades earlier, like Lincoln himself, he had stated “by the Constitution, secession is not rebellion.”) This case was about Confederate states raising money for their defense using war bonds. The Supreme Court’s opinion was politically convenient (necessary) for excusing his party’s warfare against the South, and to make it harder for future seceding states to raise money via war bonds, but it was outside a judge’s authority. Judges don’t have the power to amend the Constitution, and even an amendment can’t give the Constitution the authority to ban secession.
Since the 1905 ruling in Jacobsen v. Massachusetts doesn’t explicitly overturn Texas v. White (only the foundation of the argument of Texas v. White), perhaps the federal government will be so bold as to pass a law against secession or secessionist acts. That could provide an opportunity to sue, which could provide the Supreme Court an opportunity to overturn Texas v. White.