The Lawful Secession: Can States Legally Break Away?

The question of whether a state can lawfully secede has been a topic of debate for centuries. In the United States, the concept of secession has been particularly contentious, with some arguing that states have a right to secede if the federal government fails to secure the rights of its citizens, while others maintain that the Union is perpetual and indissoluble. While the legal path to secession is through official channels like petitions, as evidenced by the 2012 petitions from all 50 states following President Obama's re-election, the practical and legal implications of state secession are complex and far-reaching.

The right to secede is constitutionally questionable

The concept of secession, or a state's unilateral departure from the United States, presents complex legal and constitutional questions. While some argue that the Constitution grants states the right to secede, this interpretation is highly contested and has been historically rejected by the US government. The legality of secession was a contentious issue during the American Civil War, and it remains a subject of debate among legal scholars and constitutional experts.

Those who support the idea of a state's right to secede often point to the Tenth Amendment of the US Constitution, which states that "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." Proponents of secession interpret this amendment as recognizing a fundamental right of states to determine their own destiny, including the option to withdraw from the Union. They argue that the Constitution is a compact or agreement among the states, and like any contract, it can be dissolved if one party chooses to do so.

However, this interpretation is constitutionally questionable for several reasons. Firstly, the Constitution itself is silent on the issue of secession, neither explicitly permitting nor prohibiting it. This absence of explicit provision suggests that the Framers did not intend for states to have the unilateral right to secede. Secondly, the Supremacy Clause of the Constitution establishes that federal law is the "supreme Law of the Land," binding on all states. This clause implies that states are bound by the terms of the Constitution and cannot simply choose to opt out or disregard its provisions.

Furthermore, the historical context surrounding the adoption of the Constitution and the subsequent Civil War also weighs against the legality of secession. During the Constitutional Convention, several proposals were made to include a provision explicitly allowing for secession, but these were ultimately rejected. This suggests that the Framers intentionally omitted such a right from the final document. Additionally, the Union victory in the Civil War and the subsequent Reconstruction Amendments solidified the principle of an indissoluble Union. The Thirteenth, Fourteenth, and Fifteenth Amendments not only abolished slavery but also reaffirmed the supremacy of the federal government and the equality of citizens across state lines.

The natural right to secede

The question of whether a state can lawfully secede has been a topic of debate throughout American history, with some arguing for a "natural right to secede." This argument stems from the belief that individuals have inherent rights that cannot be taken away by any government. Proponents of this view assert that if a government fails to secure the rights of its people, as recognised by its constitution, and if there are no other means of redress, then secession is an undoubted natural right of the people.

This argument was particularly prominent during the formation of the United States when thirteen American colonies declared themselves free and independent states, breaking away from the British Crown and establishing their own government. The right to secede has been a contentious issue, with some arguing that a state's membership in a union is binding and perpetual, and that secession without the consent of other members could lead to civil war and loss of national existence.

However, others counter this by pointing out that the language of perpetuity is not present in the Constitution, which was adopted after the Articles of Confederation. They argue that the Constitution was meant to make the union more perfect, not to limit it, and that it does not abrogate the right of states to secede. Additionally, they highlight that the power to alter the compact lies with the states themselves, and if the rights of the people are not upheld, secession becomes a viable option.

While the legal and constitutional aspects of secession are complex, it is important to note that the natural right to secede is often invoked when individuals feel their rights are not being protected or when they seek to redress grievances. In modern times, we have seen examples of this through petitions on the White House's "We the People" website, where citizens from all 50 states have expressed their desire to secede. While secession may not be a practical option, the discussion around it underscores the importance of upholding the rights and freedoms of all citizens.

Secession via emigration

Secession is the Latin term for the "withdrawal of the Roman plebs to a hill outside the sacred boundary (pomerium) of the city". It implies detachment from public life and emigration, and was an extreme form of civil disobedience.

In the United States, Abraham Lincoln acknowledged that secession might be possible through amending the United States Constitution. The Supreme Court in Texas v. White held that secession could occur "through revolution, or through consent of the States". However, President James Buchanan denied the right of secession, but also denied the right of the federal government to use force against the seceded states.

There are several theories and justifications for the right of secession within liberal political theory. For example, Communitarian Secessionism states that any group with a particular "participation-enhancing" identity, concentrated in a particular territory, which desires to improve its members' political participation, has a prima facie right to secede. Another theory, Democratic Secessionism, states that the right of secession, as a variant of the right of self-determination, is vested in a "territorial community" that wishes to secede from its existing political community.

Secession petitions

In the wake of Barack Obama's re-election in 2012, nearly 1 million Americans from all 50 states signed petitions to secede from the United States. Texas had the most signatures of any state, with almost 126,000. These petitions prompted counter-petitions asking the president to stop states from seceding or to deport secessionists. The Obama administration officially responded to the petitions, noting that secession was inconsistent with the US Constitution.

More recently, in 2019, California announced plans to hold a referendum on exiting the Union, citing election results and other issues such as peace and security, trade and regulation, and natural resources as reasons for seeking secession. While the legal pathway for a state to secede from the United States is unclear, some have argued that the right of self-determination or sovereignty should be respected in certain circumstances.

The impact of secession on the seceding state

Firstly, secession can lead to a loss of representation and influence for the seceding state within the larger union or federal structure. This can result in a lack of participation in decision-making processes and policies that may still affect the seceding state. The seceding state may also lose access to the resources, infrastructure, and economic benefits that come with being part of a larger union. This can include shared systems of transportation, communication, and trade, as well as access to a larger market and shared currency.

Secondly, secession can have significant economic consequences. The seceding state may need to establish its own currency, develop new economic policies, and negotiate new trade agreements. It may also face challenges in terms of accessing natural resources, such as water and energy, which may have previously been shared or managed collectively. The cost of establishing and maintaining a separate government, with all the associated institutions and bureaucracy, can also be significant.

Thirdly, secession can lead to social and cultural divisions, particularly if the secession is driven by ideological or ethnic differences. This can result in the displacement of people, with some individuals or communities choosing to remain in the union, and others choosing to align with the seceding state. Social and cultural ties may be strained, and there may be a sense of uncertainty or instability during and after the secession process.

Finally, secession can have important geopolitical implications, particularly in terms of defence and foreign policy. The seceding state may need to establish its own military or defence force, and may need to negotiate new alliances or relationships with other states or international organisations. The process of secession can also be a source of tension or conflict, particularly if the union or other states attempt to prevent or reverse the secession.

Overall, the impact of secession on the seceding state can be complex and wide-ranging, affecting political, economic, social, and cultural dimensions of life. While secession may be pursued as a means of asserting self-determination or addressing grievances, it can also carry significant costs and challenges.

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