# Constitutionally: Any Reason Secession IS NOT legal?
**URL:** https://boards.straightdope.com/t/constitutionally-any-reason-secession-is-not-legal/154663
**Category:** Great Debates
**Created:** [February 12, 2003, 9:23pm UTC](https://boards.straightdope.com/t/constitutionally-any-reason-secession-is-not-legal/154663 "2003-02-12T21:23:50Z")
**Posts on this page:** 20
**Page:** 2
### Author:  [@X\_Slayer\_ALE](https://boards.straightdope.com/u/X_Slayer_ALE)
#### Post date: [February 13, 2003, 12:57am UTC](https://boards.straightdope.com/t/constitutionally-any-reason-secession-is-not-legal/154663/21 "2003-02-13T00:57:27Z")
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> \*Originally posted by Bearflag70 \*
> \*\*As a practical matter, the US military would be coming along shortly to remind us (seceding) Californians just how relevant the US Constitution is… \*\*
Understandibly correct. They as the parent nation would use their constitution as the precept of keeping a seceding state (or states) from leaving. Which was the whole point of the civil war. However, as stated by **minty green** In the case of State of Texas v. White, 74 U.S. 700 (1868) of the U.S. Supreme Court :
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> 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.
Obviously a majority of states voting to allow secession isnt enuf or it wouldve been a simple matter of getting enuf state votes to allow the confederation secede the union. I am assuming it has to be unanimous. So the only recourse is for revolution. Being able to defeat the US military would be a serious and significant consideration while planning a state secession. An exercise that our forefathers thought hard and deep, well up to the point where they signed the declaration of independence.
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### Author:  [@minty\_green](https://boards.straightdope.com/u/minty_green)
#### Post date: [February 13, 2003, 1:04am UTC](https://boards.straightdope.com/t/constitutionally-any-reason-secession-is-not-legal/154663/22 "2003-02-13T01:04:01Z")
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> \*Originally posted by Bearflag70 \*
> Comparative Law: Didn’t the Canadian Supreme Court declare a right to secede with consent from the national government?
So did _Texas v. White_. That’s the thing: you need consent to withdraw. Otherwise, the rest of us get to beat the shit out of you until you concede the error of your judgment.
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### Author:  [@X\_Slayer\_ALE](https://boards.straightdope.com/u/X_Slayer_ALE)
#### Post date: [February 13, 2003, 1:23am UTC](https://boards.straightdope.com/t/constitutionally-any-reason-secession-is-not-legal/154663/23 "2003-02-13T01:23:39Z")
Quite true, **minty green** or the opposite culd be true. The seceding state can take on all comers and ask their allies to help in the birth of a new nation. There was a time where the confederacy was at spitting distance of Washington DC. Had they taken that place over, we would now have the USA of considerably less number of states and dem Southerners. Mexico would be south south america.
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### Author:  [@Polycarp](https://boards.straightdope.com/u/Polycarp)
#### Post date: [February 13, 2003, 1:23am UTC](https://boards.straightdope.com/t/constitutionally-any-reason-secession-is-not-legal/154663/24 "2003-02-13T01:23:59Z")
First, there is clear Constitutional precedent, merely not a SCOTUS decision, in permitting secession _with the consent of Congress_, as I pointed out in that other thread, i.e., the granting of independence to the Philippines. The Philippine Islands became territory of the United States by treaty with Spain in 1899 ratifying our conquest of them during the Spanish-American War the year before. We also obtained Puerto Rico, rights over Cuba (which we were prepared to allow to become immediately independent), and a few loose ends, which I think included Guam, out of that war. The agreement with the Philippine people was that we would provide education and defense for 40 years, reserving certain rights for the U.S government in the interim, and equipping the nationals for self-government. In 1935 we fostered the establishment of the first Commonwealth government there (in the sense in which Puerto Rico is a Commonwealth), with the intent of granting independence in 1942 or so. A minor contretemps with Japan delayed that granting, but after the liberation of the Philippines, they put together a government and in 1946 we duly recognized that government and formally ceded to it the U.S. territory of the Philippine Islands, reserving the right to a couple of bases as extraterritorial U.S. property (like Wiesbaden AFB as regards Germany) on their national territory.
If you look over the case, what had happened is that after the Civil War, the Reconstruction government sued to recover some “securities” (bonds?) previously owned by the state which the government under the Confederacy had sold. Chief Justice Chase held that the state could not secede, and that therefore its action in seceding was unlawful and had left the state with no lawful government. The act of selling the securities was illegal, because it was done by an unlawful government.
Now, there’s something just a trifle tacky about the way this case was decided. If someone committed a murder in the South during the Civil War, is he entitled to go free because the courts of the state that tried him and sentenced him to life without parole were not lawful courts? It smacks of legal artifice of the sort in which precedent and implication of constitutional provisions are juggled until a result that pleases the court is “justified.” I think **Jonathan Chance** has it in one.
However, I cannot see its holdings about secession being overturned, unless something bizarre happens – for example, Hawaii decides to get behind the independence movement, a majority in Congress decides to let them go (say Republicans in the majority realize that Hawaii fairly regularly elects Democrats, so letting them go will increase their majority). The Secretary of State thereupon agrees to a treaty with the Republic of Hawaii and turns the land they’re located on over to them. They promptly nationalize the pineapple plantations, and the Dole Pineapple heirs sue the Secretary of State using _Texas vs. White_ as precedent.
However, **Dr. Lizardo** , you are sadly mistaken about the standards of Constitutional law in the U.S., unless you’re aware of them and are looking to debate text _ab nihilo_ without regard to previous decisions. The Supremes are not in the position of a movie reviewer but the body empowered to make the final decisions on what the law of the land is by virtue of being given the judicial power of the United States in Article III of the Constitution.
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### Author:  [@X\_Slayer\_ALE](https://boards.straightdope.com/u/X_Slayer_ALE)
#### Post date: [February 13, 2003, 1:41am UTC](https://boards.straightdope.com/t/constitutionally-any-reason-secession-is-not-legal/154663/25 "2003-02-13T01:41:33Z")
One minor point, **Polycarp** , The Philippines was not a state. As a territory that has not been joined with the Union, they are still able to either apply for statehood which would then require an act of congress to make them a state OR they could declare independence. Guam, Puerto Rico and parts of the Virgin Islands still have those options.
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### Author:  [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)
#### Post date: [February 13, 2003, 1:44am UTC](https://boards.straightdope.com/t/constitutionally-any-reason-secession-is-not-legal/154663/26 "2003-02-13T01:44:28Z")
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> However, I cannot see its holdings about secession being overturned, unless something bizarre happens – for example, Hawaii decides to get behind the independence movement, a majority in Congress decides to let them go (say Republicans in the majority realize that Hawaii fairly regularly elects Democrats, so letting them go will increase their majority). The Secretary of State thereupon agrees to a treaty with the Republic of Hawaii and turns the land they’re located on over to them. They promptly nationalize the pineapple plantations, and the Dole Pineapple heirs sue the Secretary of State using _Texas vs. White_ as precedent.
I don’t know that even that scenario would have to lead to _Texas v. White_ being overturned. From the decision:
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> 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.
I think _Texas v. White_ would not conflict with a process of secession that had received Congressional approval.
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### Author:  [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)
#### Post date: [February 13, 2003, 2:12am UTC](https://boards.straightdope.com/t/constitutionally-any-reason-secession-is-not-legal/154663/27 "2003-02-13T02:12:28Z")
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> \*Originally posted by Polycarp \*
> **However, I cannot see its holdings about secession being overturned, unless something bizarre happens – for example, Hawaii decides to get behind the independence movement, a majority in Congress decides to let them go (say Republicans in the majority realize that Hawaii fairly regularly elects Democrats, so letting them go will increase their majority). The Secretary of State thereupon agrees to a treaty with the Republic of Hawaii and turns the land they’re located on over to them. They promptly nationalize the pineapple plantations, and the Dole Pineapple heirs sue the Secretary of State using _Texas vs. White_ as precedent.**
Curiously, **Poly** , (and I’m looking forward to Saturday) this is exactly the modern day example I had in mind. I believe that if the pro-independence groups in Hawaii marshalled enough support to get a referendum on the ballot calling for independence, given the current political climate (not just the Republican majority but rather the belief in self-determination prevalent in American society today) the federal government would have trouble _not_ negotiating for the granting of independence.
This isn’t 1862 when the federal government could clearly call up troops and begin shooting other americans (note the small ‘a’ there). Nowadays you’d see a challenge to T vs W in a Honolulu minute. And I wouldn’t give odds on which way the decision would go.
Remember, children, what the SCOTUS does it can just as quickly **undo**. And it would be easy for some political pressure to be placed based upon an interpretation of T vs W akin to mine.
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### Author:  [@Polycarp](https://boards.straightdope.com/u/Polycarp)
#### Post date: [February 13, 2003, 2:15am UTC](https://boards.straightdope.com/t/constitutionally-any-reason-secession-is-not-legal/154663/28 "2003-02-13T02:15:05Z")
One might even make a case that it would have to receive the unanimous consent of the Senate, because otherwise it would be “depriving Hawaii of equal representation in the Senate.” 😉
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### Author:  [@Freddy\_the\_Pig](https://boards.straightdope.com/u/Freddy_the_Pig)
#### Post date: [February 13, 2003, 2:18am UTC](https://boards.straightdope.com/t/constitutionally-any-reason-secession-is-not-legal/154663/29 "2003-02-13T02:18:17Z")
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> \*Originally posted by DrLizardo \*
> \*\*I did not ask about constiutional law, interpretation, etc. I asked for a discussion of the Constitution, the document, and whether any of the text in it supports or prohibits secession.
> \*\*
That will be a very short and uninteresting discussion. The text of the Constitution, as you’ve already told us, is silent on the matter of secession. So if we aren’t going to branch out into interpretation, history, precedents, logic, and so forth, what exactly is there to discuss?
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### Author:  [@Bearflag70](https://boards.straightdope.com/u/Bearflag70)
#### Post date: [February 13, 2003, 2:19am UTC](https://boards.straightdope.com/t/constitutionally-any-reason-secession-is-not-legal/154663/30 "2003-02-13T02:19:17Z")
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> > [@](#):
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> > _Originally posted by Bearflag70_
> > **Comparative Law: Didn’t the Canadian Supreme Court declare a right to secede with consent from the national government?**
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> \*Originally posted by minty green \*
> \*\*So did _Texas v. White_. That’s the thing: you need consent to withdraw. Otherwise, the rest of us get to beat the shit out of you until you concede the error of your judgment. \*\*
Agreed assuming my recollection of Canadian law is correct with respect to provinces. Bueller? Bueller?
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### Author:  [@John\_Mace](https://boards.straightdope.com/u/John_Mace)
#### Post date: [February 13, 2003, 2:33am UTC](https://boards.straightdope.com/t/constitutionally-any-reason-secession-is-not-legal/154663/31 "2003-02-13T02:33:49Z")
Jonathan:
Am I reading your post correctly in that you think Hawaii would have a chance at seceeding, or are you just saying that YOU think they should be able to? I share your libertarian leanings, but I can’t see a situation where our gov’t would let a state go. Especially one with the strategic military importance of Hawaii. No, this isn’t the 1860s, but it wasn’t that long ago that the national guard was called in to enforce civil rights laws in the South. There might not have been much shooting then, but that’s what they were there for-- to shoot if needed.
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### Author:  [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)
#### Post date: [February 13, 2003, 2:44am UTC](https://boards.straightdope.com/t/constitutionally-any-reason-secession-is-not-legal/154663/32 "2003-02-13T02:44:19Z")
Yes, I both believe secession is something a state should be able to do and that Hawaii could do so in the current political climate. I think the proper public relations effort, backed with a statewide referendum in which a large majority of Hawaiian resident voted for independence would place the federal government in the position of enforcing the ‘unity’ of the union with a population (in the non-Hawaiian states) that didn’t actually care if they left or not.
Of all the current states I think Hawaii is the only one currently in a position to make that case. Their remoteness from the other states plus the history of ‘land theft’ (such as it is) of how the native hawaiians got screwed gives them a unique opportunity.
I honestly don’t feel the federal government would be able to muster the votes in the congress to _stop_ it.
And remember, the National Guard in this instance would answer the will of the _Governor_. They’d instantly become the army of the new sovereignty.
Of course I believe a consequence of this would be the **very** quick granting of statehood to the District of Columbia. That’s a natural compromise that the Democratic Party would push for.
And, as a Virginian, I’d **prefer** if Maryland seceded. But that’s kind of unsportsmanlike of me.
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### Author:  [@John\_Mace](https://boards.straightdope.com/u/John_Mace)
#### Post date: [February 13, 2003, 2:56am UTC](https://boards.straightdope.com/t/constitutionally-any-reason-secession-is-not-legal/154663/33 "2003-02-13T02:56:32Z")
Janathan:
Interesting scenario, but I still don’t get it.
1. Native Hawaiians-- aren’t they a fairly small minority in the state? Would the rest of the ethnic groups (Japanese, Filipinos, Chinese, Whites, etc) go along? And I realise that in Hawaii, the various ethnic groups are more intermingled than elsewhere in the US, making their distinction less, well, distinct.
2. Does the Governor of the state control the National Guard? Was it the Governors of the southern states in the 50s who were commanding them then? Maybe my history is a bit rusty, but I don’t think they were.
BTW, I personally would be in favor of some well defined, though difficult, process to allow states to secede. I believe there was a movement several years back (maybe still active) of Indians in Maine to claim much of that state as their own. I remember seeing the treaty, and thinking that they had a pretty strong case, although I never thought they’d get anywhere with it, and they didn’t.
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### Author:  [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)
#### Post date: [February 13, 2003, 3:04am UTC](https://boards.straightdope.com/t/constitutionally-any-reason-secession-is-not-legal/154663/34 "2003-02-13T03:04:58Z")
The National Guard answers directly to the Governors of the respective states as I recall, not to the federal government. I could be wrong there.
Native Hawaiians are a minority but I think there’s a case to be made that the entire taking of Hawaii would be considered illegal in todays political atmosphere. From an admittedly biased site [www.hawaii-nation.org](http://www.hawaii-nation.org)
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> Wealthy sugar barons assisted by US agents and military forces illegally overthrew the internationally recognized Hawaiian government in 1893. In 1993, President Clinton and the US Congress formally apologized for the illegal act of war, acknowledging that Hawaiian nationhood and sovereignty has in fact never been extinguished.
That apology places the US government in the position of having admitted that the takeover was wrong. It’s a small step from there to independence with the right marketing campaign. I honestly thought at the time someone might push it.
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### Author:  [@John\_Mace](https://boards.straightdope.com/u/John_Mace)
#### Post date: [February 13, 2003, 3:19am UTC](https://boards.straightdope.com/t/constitutionally-any-reason-secession-is-not-legal/154663/35 "2003-02-13T03:19:26Z")
Sounds lilke a typical “feel good” Clinton action. I think Californian history is not that dissimilar from Hawaii. At any rate, what do you think the process should be for secession? Should it be purely by vote of the state or maybe by a super majority in congress? The process for amending the constitution might be a good model. Just throwing out some ideas right now. I’ll have to give this some thought later.
On the National Guard issue, this may be semantic, but why is it called the NATIONAL Guard if it’s controled by the states…?
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### Author:  [@minty\_green](https://boards.straightdope.com/u/minty_green)
#### Post date: [February 13, 2003, 3:49am UTC](https://boards.straightdope.com/t/constitutionally-any-reason-secession-is-not-legal/154663/36 "2003-02-13T03:49:41Z")
The National Guard is controlled by the states unless and until it is “nationalized” by the federal government. Basically, the Pentagon calls up and says “Hey, you guys take your orders from us now.”
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### Author:  [@Psi\_Cop](https://boards.straightdope.com/u/Psi_Cop)
#### Post date: [February 13, 2003, 4:54am UTC](https://boards.straightdope.com/t/constitutionally-any-reason-secession-is-not-legal/154663/37 "2003-02-13T04:54:48Z")
Let me point out that congress and the federal government wouldn’t necessarily have any choice on what to do about a state trying to leave the union. For example, **Jonathan Chance** said:
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> I honestly don’t feel the federal government would be able to muster the votes in the congress to stop it.
Remember the oath that our lawmakers take when sworn into office: “…to protect and defend the Constitution of the United States.” The Supreme Court says that the Constitution does not allow a state to leave the union. By the very highest law of the land, the President and Congress would have no choice but to “defend the Constitution.”
This isn’t to say of course that there’s no way for a state to leave the union. There’s this little process called “constitutional amendments” that allows direct amendments to the costitution. 3/4 of the several states merely need ratify a constitutional amendment saying “You can leave the Union,” and it would be law.
But realistically, why on earth would a state want to leave the union? States get more money from the federal government than they give to it, they get the premier fighting force in all the world as defense, the highest GNP (or GDP, whatever) in the world, and so on and so fourth. In this day and age, the whole debate is merely an exercise in speculation. Even if a certain element of the populace was idiotic enough to want it, the state legislature knows are more intelligent than that.
-Psi Cop
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### Author:  [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)
#### Post date: [February 13, 2003, 2:17pm UTC](https://boards.straightdope.com/t/constitutionally-any-reason-secession-is-not-legal/154663/38 "2003-02-13T14:17:15Z")
Well, Congress would do what they always do…whatever they can get away with. And that goes double for the presidency.
If I had to choose a method for peaceful secession I’d go with what I outlined. A statewide referendum followed by debate and vote in Congress. I don’t honestly know how I feel about putting it out to the other states.
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### Author:  [@plnnr](https://boards.straightdope.com/u/plnnr)
#### Post date: [February 13, 2003, 4:21pm UTC](https://boards.straightdope.com/t/constitutionally-any-reason-secession-is-not-legal/154663/39 "2003-02-13T16:21:07Z")
“Even if a certain element of the populace was idiotic enough to want it, the state legislature knows are more intelligent than that.”
I don’t know what your background is, but as someone who has worked for a state legislative branch of government I can tell you that you’re giving them WAY too much credit in the intelligence department. State legislatures are mainly made up of big fish from very small ponds (“The chair now recognizes the distinguished gentleman from Grundy.” “Mr. Speaker, I rise today in defense of the resolution making the turnip the State Root Vegetable of our fair Commonwealth…”)
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### Author:  [@DrLizardo](https://boards.straightdope.com/u/DrLizardo)
#### Post date: [February 13, 2003, 4:25pm UTC](https://boards.straightdope.com/t/constitutionally-any-reason-secession-is-not-legal/154663/40 "2003-02-13T16:25:11Z")
Hey! Wait a damn minute! I see NOTHING aobut state root vegetables in the constitution. Let’s stay reasonable here, folks.
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