Secession. This subject tends to come around every once in a while, generally any time a state is especially mad at the federal government. It meets with varying degrees of approval depending on the person and the state proposing secession (I know we're all secretly hoping California will secede from the Union so we don't have to deal with them again). Most states have probably proposed secession at one time or another, Texas being among the most frequent. In the most recent posts about Texas secession, amidst the Texas pride that of course they can make it on their own and be super successful are the commentators shooting down the idea with the words "Of course they don't have any more right to secede than any other state does." By which they were trying to imply that they couldn't secede.
The general populace seems to agree that states aren't allowed to secede from the Union, and whenever you try to ask them why, they say, "Well, it doesn't say they can in the Constitution." In fact, the general populace seems to agree that the US Constitution bans secession. Here, I'd like to examine the arguments against secession and determine whether or not they are valid.
Argument #1: This issue has already been decided by the Civil War. That's why the North fought the South.
This is one of the weakest arguments. If you examine source documents, for quite a few months after the Southern states proposed secession, everyone in the North was in favor of their power to do so, and indeed, wished them well. Virginia didn't even consider seceding until the Federal government grossly violated the Constitution by sending armed troops to invade their state, an action expressly prohibited in the US Constitution. True, the Supreme Court decided that the South's secession had been "definitely and forever overthrown" by the Civil War, but outcomes forced by military action are a far cry from actions examined by a court and declared unconstitutional. The British Empire tried to forcibly keep many of their colonies from leaving, and yet nobody doubts the validity of the United States or India as nations. Military actions cannot decide legal precedents. Also, many scholars claim that the Civil War was fought over slavery or the Morril Tariff, so universally deciding that this issue has been decided by the Civil War is impossible.
Argument #2: The Articles of Confederation ban secession, and they weren't actually expressly repealed, so they're still in effect.
We all know the story of the US Constitution. They got up a convention to fix the Articles of Confederation, but ended up replacing it completely, the key word here being replace. No, the words, "The Articles of Confederation are hereby repealed" are not in the US Constitution. But that doesn't mean they weren't repealed in it. Indeed, the Constitution does repeal the Articles of Confederation: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land". The Articles of Confederation are not laws, nor are they a treaty, and therefore are not counted as the supreme Law of the Land according to this clause. Whatever the Articles of Confederation meant by "perpetual Union" is irrelevant since they are not legally binding today.
Argument #3: Article 1 Section 10 of the US Constitution states that "No State shall enter into any Treaty, Alliance, or Confederation", thereby banning secession.
Abraham Lincoln used this argument to claim the government of the Confederate States of America was invalid. If the Southern states had entered into this confederation without seceding, indeed he would have been right. But this clause only applies to states actually in the Union, and the Southern states did not consider themselves part of the United States of America once they had voted for secession. The validity of Abraham Lincoln's argument about the CSA's government hinges upon whether the states were truly not part of the Union anymore. This question cannot be decided by this clause.
Argument #4: The Fourteenth Amendment implicitly bans secession.
This is the hardest to refute since words can "imply" anything, and implications tend to be a matter of opinion. This being said, the only reference to states in the Fourteenth Amendment is to ban states already in the Union from denying their civilians freedoms guaranteed by the US Constitution or supporting laws and does not touch on the actions of states as collective entities.
Argument #5: Six former Confederate states banned secession in their state constitutions.
Those state constitutions were made under duress and could easily be considered voidable. Also, state constitutions are very easily amended. Furthermore, this is a ban on a state level, not a federal level, and cannot be enforced or viewed as such. Several states also have official religions and languages, which the federal government is banned from doing.
Argument #6: The Pledge of Allegiance states that the United States is "one nation, indivisible." The word "indivisible" means cannot be divided, and so secession is banned by the Pledge of Allegiance.
This is about the worst argument of the bunch. The Pledge of Allegiance is not legally binding and simply exists to inspire patriotism. It is considered by Congress to be a national symbol, on the level of the National Anthem and the bald eagle.
So secession is nowhere expressly or implicitly banned. But are arguments for the legality of secession simply arguments from silence? Not quite. I submit two pieces of evidence: one from the Declaration of Independence and one from the US Constitution.
"That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,--That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government,....it is their right, it is their duty to throw off such Government, and to provide new Guards for their future security."
"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."
I could submit further arguments, such as the fact that Virginia, Rhode Island, and New York ratified the US Constitution solely on the condition of explicitly retaining the right to secede, and the US government acknowledging that also acknowledges the power of any state to secede. However, I believe that this is enough. Secession is nowhere banned by the US Constitution, so, pursuant to the Tenth Amendment, that power is reserved to the States, or to the people. This isn't even a radical idea. Ireland seceded. Scotland has full power to, but voted not to. Britain is leaving the EU. Puerto Rico has the power to become an independent country, they just keep voting against it. The United States seceded from the UK. Our states only became states by voting to accept the US Constitution (which is why Delaware is the first state). All a state would have to do to secede would be to vote in its state legislature to reject it. This isn't actually a hard issue and it shouldn't be.
So, if California really wants to leave the Union (pretty please?) or Texas sincerely thinks they can make it on their own, go ahead. They have the power and the right to leave the Union. It's how our nation was founded, after all.
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