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Friday, January 18, 2013

Can an American State Secede?

A war was fought over it. In early 2013, the White House made it explicit in replying to a petition. Yet still there was a sense among at least some Texans that something was amiss. Following Barak Obama’s re-election, citizens of Texas, Louisiana, Alabama, and five other republics in the Union signed petitions for the White House to allow their respective states to secede from the Union. At the time, few people other than the secessionists themselves took the petitions seriously. Yet the underlying contending principles deserve more serious reflection. Most importantly, the matter concerns how and whether rights are to be circumscribed in a federal Union founded on the protection of the rights of man against an encroaching state.
In his reply to the petitions, Jon Carson, director of the White House Office of Public Engagement, argues that the American Founders did not provide a right for states to “walk away” from the Union, it being perpetual. He cites Texas v. White, a U.S. Supreme Court case in 1869 that ruled that individual states do not have a right to secede. The republics constituting the Union consisting of citizens, the decision translates into a declaration of a non-right of a state’s citizens.
                                             The flag of Texas, a republic in the United States. Texas is a bit larger than France.   source: austinflag.com
For his part, the communications director for the Texas Nationalist Movement, Jeff Sadighi, pointed to the section of the Texas constitution that asserts Texans have the right “to alter, reform or abolish their government in such a manner as they may think expedient.” That constitution being that of Texas, however, the government being referred to must be that of Texas, rather than the United States. Even were Texans to abolish their government, Texas itself would still be a state in the Union. The section of the Texas constitution is actually in tension with that of the U.S. constitution that requires every state to be a republic (i.e., representative democracy as its form of government).
I find that Europeans in particular are surprised to learn that the American states are republics, for to European ears that signifies countries or nations. Being semi-sovereign constitutionally, the American republics are indeed equivalent as polities to the semi-sovereign states in the E.U. Indeed, the Texas Nationalist Movement itself suggests that Texas is essentially a nation within a Union. The problem is that semi-sovereignty is taken in the U.S. (but not the E.U.!) to effectively disenfranchise a republic from being a country.
Joe Straus, the Speaker of the Texas House of Representatives, told lawmakers, “Our economy is so vast and diverse that if Texas were its own country . . . , we’d be the 14th-largest economy in the world.” Just as E.U. states are characterized as having their own economies in spite of the fact that the E.U. has a common market (and thus an economy), we can refer to the American member states as having economies. I have often heard references to California, for instance, as having the 6th largest economy in the world. That the California Republic (see California’s flag for this name!) is semi-sovereign does not mean that California somehow does not have the 6th largest economy in the world. Therefore, it can justifiably be said that Texas has the 14th-largest economy in the world, whether or not Texas is its own country. This phrase is itself suspect, for does being semi-sovereign mean that Texas country is no longer Texan? Put more directly (I was playing on words), being “one’s own” country is not requisite to being a country, even if foreign policy is one of the competencies shifted to the Union. That is, Texas is commensurate to a European country even if people outside the U.S. are only touched by the U.S. Government.
Were there less relegation of the American states, especially relative to the European states, perhaps there would be less impetus to secede from the American Union. Were state in the American sense remembered to be synonymous with republic or country—the states having been sovereign states before and under the Articles of Confederation—rather than as referring to a country’s province or region, perhaps people would not conclude that secession is the only option left for their respective states as polities.
Moreover, given the value put on rights in the United States—and the role of such principles as the glue holding the Union together—denying citizens of a particular state a right may backfire by virtue of the hypocrisy alone. Are we so afraid the United States will disintegrate were the right to secede recognized? Did not the Founders believe that the rights held by the states, and the citizens, to be residual rather than limited to what the government specifies? No one would contend that the Bill of Rights exhausts the rights. Indeed, the 10th Amendment explicitly refers to the residual (i.e., unspecified) powers being held by the states and the people, rather than the U.S. Supreme Court, the Congress, or the U.S.President. Is not a power a right? That is to say, is not the right to secede the power being recognized to secede? If so, the 1869 case violates the 10th Amendment of the U.S. Constitution.
To remove secession from among the residual powers of the states, a U.S. constitutional amendment would be necessary. The power/right would have to be specified in order to be renounced. Such a step would evince weakness, rather than the self-confidence of a free people. To the extent that the U.S. is still sufficiently strong, a proposed U.S. constitutional amendment could be proposed that would specify how states can exercise what is now a residual right—that of secession. Should a state ever become serious about wanting out of the Union to become an independent rather than semi-sovereign country, it will be too late for measured rational discussion and prescribed procedure. The result would inevitably be chaos and violence rather than order.
The irony is that telling the citizens of the several states that they do not have a group right to secede from the Union may actually push some closer to the exit. Specifying safety procedures should anyone otherwise bold for the exits could relieve anxiety and facilitate the dream of perpetual union. Perhaps the lesson is the perpetual cannot really be forced, but must ultimately be desired, at least among a free people.

Source:

Manny Fernandez, “White House Rejects Petitions to Secede, but Texans Fight On,” The New York Times, January 16, 2013.