Does Secession Really Require an Amendment?
Opinions differ
In the last post, we discussed the mechanism by which states could be permitted to peacefully withdraw from the Union by means of a Constitutional amendment referred to the states for ratification by an act of Congress.
But wait! There are some folks who say that “We don’t need no stinking amendment!” to leave the United States. Today we will look at some of those arguments, and why pursuing the no-amendment path might provoke a second, violent Civil War.
THE “NO AMENDMENT NEEDED” SIDE
The Texas Nationalist Movement (tnm.me) explains it this way:
“There is no prohibition in the United States Constitution that forbids any state from exiting the union. The Constitution of the United States actually defines the specific acts States are forbidden from committing in Article 1, Section 10. Nowhere in the remainder of the Constitution is the issue of a State leaving the Union explicitly forbidden, nor is power ceded to the federal government to prohibit one from doing so. In this silence, the Tenth Amendment to the Constitution rings loudly.
“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.”
Red State Secession (www.secession.substack.com), in a guest post by Scott Winston Dragland, maintains:
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 authors who contend that there is already sufficient authority for a state to leave the Union seem to base their arguments on:
The Articles of Confederation that pre-dated the Constitution. They considered the original thirteen colonies as sovereign nations. The Articles implied that the units – states -- would keep that status once united (but to muddy the issue, the Articles also referred to the joining of the states as a “perpetual Union”).
In the Constitution, Article I Section 10 has a long list of things that states CANNOT do. Secession is not mentioned.
In the Bill of Rights, the Tenth Amendment, quoted above, specifically refers to powers not delegated to the national government as being reserved to the states and the people.
After invoking the arguments above, the Texit movement seems to rely heavily on the supposition that the central government wouldn’t dare to confront Texas militarily over secession, and besides, they have a lot of firearms.
The Texas Nationalist Movement presented 132,000 signatures to the Republican Party of Texas, seeking to have a question added to the March 2024 GOP primary ballot that would read: “Should the State of Texas reassert its status as an independent nation?” This quantity of signatures is considerably in excess of the 97,000 needed and thus the question seems likely to be approved for inclusion.
If the yes vote wins, this nonbinding referendum would empower the Texas Legislature to create a bipartisan commission to consider secession. So, it wouldn’t by itself initiate the secession process, but it would be formal notice to Texans, to other states and to the federal government that Texas wants to explore ways to leave the Union.
Without a constitutional amendment allowing that departure.
THE “YOU CAN’T DO THAT” SIDE
There are multiple constitutional lawyers who have offered their thoughts on secession. The commentaries range all over the map. Some say “Easy peasy!” while others point out that there is currently no legal and peaceful mechanism for secession.
There is some guidance from the Supreme Court which decided a case involving Texas in the years right after the Civil War. The case, entitled White vs. Texas, did not directly consider secession, but the arguments hinged on whether or not Texas was a “state” in 1862, after it had passed a secession bill.
Chief Justice Salmon P. Chase wrote in 1869:
“When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.” (emphasis added)
Further on in the opinion, the justices state (regarding the decision to secede):
‘“Still it was the sovereign act of a sovereign State, and the verdict on the trial of this question, 'by battle,' as to her right to secede, has been against her.”
Many years later, an aspiring screenwriter asked multiple Supreme Court justices about the possibility of secession. The late Antonin Scalia, a favorite of conservatives, responded. (emphasis added)
“To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, ‘one Nation, indivisible.’) Secondly, I find it difficult to envision who the parties to this lawsuit [regarding a state wishing to secede] might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.”
Considering these legal opinions, more that a century apart, it seems that there is no settled law, and no authoritative opinion, that holds that secession is possible without revolution (aka Civil War II) or the consent of the states (through a constitutional amendment).
Next time, we will take a look at how an amendment-driven secession process might play out.