The logic and legalities of state secession

Tuesday, November 20, 2012 by: Greg Glaser
Tags: secession, history, Constitution

(NaturalNews) Here is a famous riddle:

In the land of Capra, a king called three of his servants to the court. The king blindfolded each servant, and then placed a hat on each servant's head. The king said truthfully to the servants, "You are wearing either a white hat or a blue hat, but at least one of you is wearing a blue hat. When you remove your blindfolds you will not be able to see your own hat, but you will see the hats of your two fellow servants. The first servant who can step forward and announce the correct color of his own hat, and the logical reason for how he determined the color, shall be a freeman. If you choose not to answer, you will remain my bondservant. But if you simply guess your answer or state your logic incorrectly, I will decapitate you. Now please remove your blindfolds." The three servants removed their blindfolds and looked at one another, but none stepped forward as none of them knew the answer immediately. The servant in the middle, whose name was Aries, saw that the other two servants were both wearing blue hats. He pondered this for a few minutes and then stepped forward to correctly announce the color of his own hat, and the correct logic for his decision. What did Aries say to the king?

You can answer this riddle with logic (or if you prefer, you can read the logical answer at the end of this article). Note that the answer does not require wordplay or trickery (such as one of the servants being clairvoyant). It requires ordinary human logic, including for example the ability of a man to appreciate the perspectives of his fellow man.

So with that context, I'd now like to present the following analysis of a legal issue that is garnering attention among sovereigns today - State secession in America. In modern history this subject has often (not always, or even mostly) been a lowbrow topic, discussed over canned fermented beverages by people who are prone to racism.

American legal scholars, by contrast, are more likely to display red neckties, and to say that the logistics and legality of State secession cannot be known because the Constitution does not explicitly provide the procedure for it. But, I say that any man can use logic to find the answer, just like the logic required to answer the riddle above (legal training is not required):

First, the US Constitution does not expressly prohibit secession. Rather the most analogous provision can be found in Article IV, Section 3, "New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress."

Second, Amendment 10 to the United States Constitution provides additional support for the premise that because the US Constitution does not expressly prohibit secession, it remains a matter reserved to the States, "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."

Third, even if the US Constitution were somehow interpreted by a court to prohibit secession, the Constitution itself can still be amended as follows: the state legislatures of 2/3 of the states (33 states) can vote to request that the U.S. Congress convene a constitutional convention under Article V. Or alternatively, a 2/3 majority of members in both the U.S. House and U.S. Senate can approve a joint resolution proposing an Amendment. And then in either case (constitutional convention or joint resolution), Article V of the United States Constitution specifies that ratification of any Amendment requires the approval of 3/4 (38) of the state legislatures.

Therefore logically, if at least 38 States actively convene their legislatures to vote officially and simultaneously upon each secession bill, and then each of those authorized 38 legislatures obtains a majority vote in favor of the secession bills in question, then the text of each approved bill would be required to be recorded on each State's official records as enacted law in support of a Constitutional Secession Amendment. Although each enacted law could be challenged with a lawsuit at the federal level and/or State level, it would still be enacted on the official records of each approving State, to which every other State is required to give 'full faith and credit' under Article IV, section 1.

Conclusion, from a logical perspective and a legal perspective, it is not law that stands in the way of secession - it is politics; and let's be honest and civil with one another, it always has been politics. Law itself can find a way to readily create or sever any government or obligation.

If the States followed the above procedure, there would be little debate (even from fervent anti-secessionists) that the States lack both the constitutional authority and political authority to secede lawfully. Recall for example the famous Supreme Court case of Texas v. White (1868) 74 U.S. 700, 726, where it was written, "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].

This Supreme Court opinion was written by Salmon P. Chase, a famous attorney from the North who helped outlaw slavery. He was also instrumental in designing and implementing a national banking currency, and his picture is on the $10,000 bill. It is said that one of his most famous quotes is "My agency in promoting the passage of the National Banking Act was the greatest financial mistake of my life. It has built up a monopoly which affects every interest in the country. It should be repealed, but before that can be accomplished, the people will be arrayed on one side and the bankers on the other, in a contest such as we have never seen before in this country."

Well, here we are.

Those who desire secession today would do well to remember that adherence to the consent procedure (outlined above) may be the only lawful secession method that avoids consummating treason as a "rebel". See e.g., The Use Of The Fourteenth Amendment By Salmon P. Chase In The Trial of Jefferson Davis, 1200 Akron Law Review 42:1165 (2009), by C. Ellen Connally.

And on that note, one might think the secession process could also be accomplished by peoples' referendum/petition at the State level. But cases like Kohlhaas v. Alaska, 223 P.3d 105 (2010), have found the localized petition method is not appropriate. The Alaskan Supreme Court in Kohlhaas relied on the Federal Supreme Court opinion of Texas v. White, recognizing that secession is disfavored and that it is accomplished "through consent of the States."

Another interesting historical side note is that New York and Virginia made the right to withdraw from the union explicit in their original acceptance of the Constitution.

Now logistically, any lawful and orderly secession would require a great deal of planning and coordination, especially because there are countless other legal items in play as well (such as the apportionment of existing monetary obligations (as the Texas v. White case addressed); and contracts with the federal government regarding federal land and property still within the seceding State). And for practical purposes, secession enactments at the State level have an immediate impact in local governance, not to mention the lives of the seceding State's citizens. Even when counties redraw their borders it requires immense advance planning to avoid disorder.

Also on this topic of avoiding disorder, given the extraordinary and unprecedented nature of any secession petition by consent of a supermajority of States, secession litigation (by the federal government for example) could be fast-tracked by writ petition directly to the US Supreme Court (seeking for example a writ of mandamus based on original jurisdiction due to "practical necessity"). See e.g., Texas v. New Mexico (1983) 462 U.S. 554, 570.

And as shown above, according to the precedent of Texas v. White, 74 U.S. at 726, secession by formal consent of States is a Constitutional act. Legal case closed. Practical case not closed - secession brings tribulation and hardship and ambiguity to people and businesses and governments.

But again, it is not law that stands in the way of secession. As words on paper, the law serves the will of the people who respect it, so if a "supermajority" align their politics toward secession, constitutional law will accommodate their will with the appropriate words. The words are not difficult to find or create. Indeed the law will accommodate virtually any conceivable legislative will of the people, whether it be debt forgiveness jubilee, or the creation of eco-communities, or a Republic among small sovereign states, or a fascist dictatorship. Even Prince William of Wales could be enthroned in America as the new King under our existing Constitution simply by ratifying a single new carefully worded amendment.

Moreover, amendments are not terribly extraordinary in history when interests are threatened, or even rational- we banned alcohol for example, then we brought it back later. The country was forged on the idea of outlawing the King of England, so the question of secession naturally brings to my mind the curiosity of whether Anglophiles will blow horns for the return of their king. All I can say with relative certainty is that the American people always seem to be blowing horns for something. In our country today the loudest horns favor military and economic might toward a tolerable standard of living/pollution/crime.

Personally, I think secession is mostly presented as a topic of diversion (so I am trying to redirect it as a topic of introspection) - secession doesn't fundamentally address the core problems that are now decisively global, such as "perpetual war, pollution-based economy, false religious dogma, civil oppression, genetic tinkering, military black ops, advanced weaponry deployment, unsustainable agricultural practices, cheap toxic goods, inhumane treatment of animals, pharmaceutical medication, and so forth". Money and the Blame Game, by Greg Glaser. Do these problems disappear if 10 or 20 or 38 States stop flying the American flag? Does the Bank of International Settlements and central banking disappear? Does NATO and all of its weaponry disappear? I don't think so! Consider for example Operation Paperclip after World War II.

If our Nation could get 38 states in Constitutional convention to chart a new course for our future, why on earth would we waste our time talking about the secession of Idaho and Texas? Why not discuss high-level engineering and administrative strategies to strike the root of some of the problems highlighted in the last paragraph?! The USA is filled with hundreds of millions of people propping up a very powerful United States government (with all its secret technology and infrastructure). Just imagine if we worked to clean that power in the open light and redirect it to accomplish sustainability and freedom initiatives like eco-communities and environmental cleanup and ending wars.

It can be difficult to find scholars willing to address these issues professionally and logistically in the context of a constitutional convention, but Alex Jones is one of them as he interviews professionals in America such as constitutional law scholar Edwin Viera. See, http://www.naturalnews.com. I may have different political views than these men, just as I will have some different views than the producer of the documentary Thrive for example, but I also see we can find a great deal of common ground as we appreciate the perspectives of one another. For example, I see that Alex Jones is not forging schemes of bloodshed, but rather lawfully proposing methods to reach consensus on constitutional documents, beginning with a new declaration of independence looking toward a renewed Republic. Jones specifically said, "Don't fight them when they do this. Not physical.... No offensive attacks." (Transcript).

I tend to agree with those who acknowledge that secession by itself is a red herring, as it invites us to overlook our own State's oppressions (from medical dictates to prisoner abuses to toxic waste mismanagement). And why would we be so eager to discount the skill and knowledge and beauty and opportunity for solidarity among so many of our fellow Americans who would readily share our desire to redirect the federal government, if only given the opportunity...

So my vote is that we should not focus our precious energy to sever lines that appear on wall maps. My vote is that we should work together to change unsustainable behaviors wherever they occur across our frontiers, from sea to shining sea. And I like to hope there is a better method than secession to stop government agencies like FEMA from, let's say, using guillotines against the citizenry. Secession by itself is like fighting one guillotine with another. If we do that, too many people lose their heads.

And now for the answer to our riddle above:

Aries said correctly to the King, "I am wearing a blue hat. I saw that my fellow servants were also wearing blue hats, so if I was wearing a white hat, then either one of my fellow servants could logically deduct that he himself must not be wearing a white hat too, because surely if the remaining servant saw two white hats he would immediately and without hesitation step forward to proclaim himself the wearer of a blue hat, because as you said plainly King - 'at least one of you is wearing a blue hat'. Accordingly, because all of us delayed in stepping forward, none of us were able to immediately discern the answer. So long as my fellow servants possess ordinary logic, I am wearing a blue hat."

The answer to our riddle hinges on the servants using ordinary human logic and also desiring freedom. For if they were either mentally-impaired or even super-logical savants (like Spock), or if they had some sinister motive other than desiring personal freedom, then Aries would risk losing his head. Thus, the riddle can be an allegory for a secession paradox -- 'we the people' gain freedom only if we succeed in appreciating the perspectives of one another precisely as we are; and any one of us risks losing his own head to treason if he discounts the logic and vote of his fellow citizen.

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Greg Glaser is a California attorney and the founder of Civil Action Network, a wiki-style forum for peaceful activism and referenda.