Secession is Constitutional
Guest post by Scott Winston Dragland
The federal government cannot be reformed. It cannot be restored to its constitutional boundaries. Attempts to do so are doomed to failure. The idea that the federal government can be redeemed is a well-intentioned delusion. If anyone could do it, President Trump was the man to do it—but the deep state resisted him every step of the way, and he was ousted from the Oval Office via a rigged election. Conservative states have a choice: subservience and submission to a corrupt federal regime, or peaceful, lawful secession.
Here are the main reasons why secession is constitutional:
The Declaration of Independence asserts that “When a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce [mankind] under absolute Despotism, it is their right, it is their Duty, to throw off such Government and to provide new Guards for their future Security.” Who can deny that the federal government has engaged in “a long Train of Abuses and Usurpations”?
The Constitution is a contract between free states, each “considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act,” to quote James Madison in Federalist No. 39. To repudiate this principle is to endorse a Union held together by coercion.
The right of secession is an attribute of state sovereignty. The original thirteen states exercised this right when they seceded from the British Empire as states, and again when they seceded from the Articles of Confederation as states. The states never surrendered this right; therefore, they still possess it. Because all states are equally sovereign, the states which acceded to the Union after the ratification of the Constitution also retain the right of secession.
The Tenth Amendment provides: “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.” The Constitution does not prohibit secession. In accordance with the Tenth Amendment, the states therefore reserve this right.
The Civil War did not settle the issue of secession. Military conquest cannot settle an issue of constitutional law any more than a sledgehammer can write a book.
Article VII of the Constitution provides that “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” In fact, the Constitution went into effect, in March 1789, with the ratification of only eleven States. North Carolina was outside of the Union for eight months after the Constitution had gone into effect, and Rhode Island was outside the Union for fourteen months. This means that the Constitution itself furnished a precedent for states which had previously been part of the Union to have a legal existence outside of the Union.
What about Texas v. White (1869)? This case was an appeal to a moot legal document. In its decision, the Supreme Court invoked Article XIII of the Articles of Confederation, which provided that “the articles of this confederation shall be inviolably observed by every State, and the Union shall be perpetual.” The Court inferred from this clause that Texas’s ordinance of secession in 1861 was “utterly without operation in law.” The glaring problem with the Court’s logic is that the Articles of Confederation ceased to be law in 1789. In that same year, North Carolina and Rhode Island ceased to be members of the Union, because they had not yet ratified the U.S. Constitution. Hence, the Union was no longer a “perpetual Union”—neither in law, nor in fact. Texas seceded from the United States seventy-two years after the doctrine of the perpetual Union had become legally moot.
Imagine this scenario. Thirteen partners hire an agent to represent them. They draw up a contract specifying the obligations and limitations of their agent. As time goes by, more partners join the partnership under the same contract. Eventually, there are fifty partners and one agent. The agent becomes so arrogant that he acts without the consent of the partners who hired him in the first place. He violates the contract repeatedly, to the detriment of his employers, by assuming powers that the contract never vested in him, and by ignoring obligations that the contract assigned to him. Most of the employers are unhappy with their agent. Can they withdraw from the partnership that they voluntarily acceded to? Perhaps not, if they had waived their right to leave. But, after an exhaustive search of the archives, it becomes clear that they never waived their right to leave, at any point.
There is not a single valid reason why states cannot legally leave the Union.
Scott Winston Dragland is an Army veteran, West Point graduate, and the author of Let My People Go: Why Texas Must Regain Its Independence. His website is here; he can be reached at scott@letmypeoplego.me.
Editor’s addendum:
Additional articles on this topic:
https://redstatesecession.org/the-us-constitution-is-a-secession-document/
https://texit.tnm.me/category/can-texas-leave-the-union/
https://www.intellectualtakeout.org/blog/can-states-secede-united-states
http://www.theamericanconservative.com/articles/is-secession-legal/
The obiter dicta of Texas v. White says that a state may only secede by consent of the states or by revolution… based on the preamble of US Constitution. But Jacobson v Massachusetts (1905) overturns that by saying that the preamble does not create an authority for the federal government except authorities that are found in the body of the Constitution.
Ask journalists why they interview random Ph.D's who don't specialize on this topic, instead of experts on the constitutional law of secession like these scholars who know that secession is constitutional:
Kent Masterson Brown, J.D., Constitutional Law
George Mason Prof. Francis H. Buckley J.D. Constitutional Law
Prof. Kevin R.C. Gutzman, J.D.. Ph.D. Constitutional Law
James Ostrowski (attorney, Mises Institute scholar)
NJ Superior Court Judge Andrew Napolitano J.D.
William J. Watkins, Jr J.D., LL.M Constitutional Law
Prof. Matt Qvortrup (Constitutional Law)
James Ronald Kennedy (M. Jurisprudence)
Brion McClanahan (Ph.D., History)
J. Michael Hill (Ph.D., History)
Thomas E. Woods (Ph.D. History)
The US Constitution’s list of things states may not do (Article 1, Section 10) does not include secession, and the Tenth Amendment says any powers that states didn’t delegate to the federal government are retained by them, or by the people. So the states still have that right. In fact, the notes taken during the writing of the Constitution show that the Framers considered and rejected the idea of adding secession to that list of things states may not do.
Article 1, Section 8 is a list of things the federal government is empowered to do, and forbidding secession is not on that list. Clause 15 in that list does empower Congress to use the militia to ensure that federal law is enforced. But this clearly can only apply on territory where the US has jurisdiction. Where the US has jurisdiction, or which states are a part of the US, is a political question, not a legal or constitutional question. If Texas withdraws from the Union it joined, it removes itself from the jurisdiction of the federal government - it is not subject to the Constitution.