Is Secession from the United States Permitted?
by
Matt Giwer (c) 1994 <11/1>

      The common consensus, the majority if you will, hold there is no right for any state to secede from the United States. Were the majority ever right upon anything there might be some position for the majority thinking. But, as in the Civil War, it was no different majority rule or rather victor's justice.
      When one looks to see if something is permitted or not, one looks for previous examples and the closer the match to the issue at hand the better. Thus we consider the post Revolutionary War colonies and the Articles of Confederation.
      Two years before the end of the Revolutionary War the 1781 Continental Congress adopted the Articles of Confederation. Four times the Articles stated it would exist in perpetuity it lasted only eight years from 1781 to 1789.
      But in ending in 1789 it required the states to withdraw from the binding, perpetual agreement of the Articles of Confederation. There was no objection, no war, no animosity save perhaps at town meetings at local public houses. Contrast this to the Civil war.
      The Constitution of the United States is silent upon how long it would be in effect. The only implication of a time limit was to prohibit amendments that would effect the slavery question until 1808. There is a statement of the requirements for the Constitution to be ratified but not that upon ratification it would be binding upon all of the states, rather only that it would come into effect. It in no manner abolished the Articles of Confederation nor the alliance formed by it.
      Further, there was the inclusion of the 10th Amendment specifically reserving to the states and the people the undelegated powers to the states and the people. It would appear since secession was not mentioned that it was a power reserved to the states as the ratification of the Constitution was by the states rather than to the people by popular referendum.
      So what was the difference? The Confederate States fired upon the federal Ft. Sumter in South Carolina, the first state to secede. What is rarely mentioned is that secession began four months earlier and had a functioning government for three months prior to Ft. Sumter. It was only after the shooting started that Lincoln ordered the blockade of southern ports and the raising of an army and when that happened four additional states including Virginia seceded to complete the Confederacy.
      The constitutional authority to respond with force comes from the Article III. Section 3. definition of treason that of "levying war against them." Had that been avoided there would have been no basis for a military response to the creation of the Confederacy.
      It is clear that both the ratification of the US Constitution and the formation of the Confederacy followed the essentially the same paths save for the initiation of hostilities. Thus we have the "secession rights" decision having been "settled" by military force.
      But to take it one step further, the victors held it was not a war of secession at all but rather a civil war within the nation rather than the Confederate holding that it was a war between the states. The distinction is simply that the north did not recognize secession in the first place although it did nothing to respond to the secession and the formation of a new government until after the initiation of hostilities. The South holds that a civil war is for control of a single government and that it was involved in a war of independence.
      It would at first appear that any state(s) has the reserved power of secession if the state simply avoids initiating hostilities. Even federal laws clearly hold that for the federal government to interfere within a state that it must be at the request of the state. The only constitutional pretext for intervention is to preserve a republican form of government within the states.
      There exists only one annoying precedent in this matter, the intervention of federal troops into the desegregation issue in Alabama without the request of the governor who was in fact leading the issue. This would be under the doctrine of protection of the rights of the people under the 14th amendment. It would appear that in secession a state must also avoid denying the citizens of the state the benefits deriving from the Federal government.
      This would appear to apply to not stopping social security payments and the like but there appears a great silence on whether the citizens of the state(s) in secession would be required to pay for such benefits. It does not appear this would be sufficient for the federal government initiate hostilities.
      Hostilities would obviously consist of taking over the mechanism of the government of the state but that would be denying the citizens of the state a republican form of government. The only precedent for that lies in the occupation of the North by the South following the Civil War and that dealt only with disenfranchising those who had fought for the South during the war. And this followed from the definition of treason that it does consist of making (levying) war against the United States and Congress having the power to determine the punishment, in this case removing their power to vote.
      Thus in fact the issue of secession was never settled. Rather in the initiation, in the progress of and in the aftermath of the war the issue only the use of force as part of secession. The laws of the victor were applied to the loser without specifically addressing the issue of secession. Thus by the precedent of the change from the Articles of Confederation to the Constitution of the United States, the states still have the retained power of secession under the 10th Amendment.