Is Secession Legal

Is Secession Legal?

Legal Assistant Administrative Law, Constitutional Law

Every few months, the Texas secession issue always seems to crop up. With renewed “Texit” calls, some of the questions on people’s minds are – Is secession legal? Can Texas secede from the United States? Why would a state want to secede anyway?

Many political analysts and legal scholars believe that secession threats should not be taken literally. According to them, it is merely rhetorical and meant to draw attention to how political and cultural differences track geographical divides.

Whether or not it’s a real possibility still calls into question its legality. Is secession constitutional? This article explores everything you need to know about it.

What Is Secession

Secession definition in a historical context refers to the exit of 11 southern states from the Union, culminating in the American Civil War.

The term session, in general, refers to the act of withdrawing from membership of a political state, body, or federation.

In the Secession Crisis of 1860-61, the southern states withdrew from the Union and declared themselves a separate nation – the Confederate States of America.

Even before the establishment of the confederacy, secession threats were nothing new. South Carolina, for instance, had tried to break away from the Union thirty years before. Before that, the Hartford Convention of 1814-15 brought together the New England states that wanted to secede.

In December 1860, however, South Carolina passed an Ordinance of Secession, becoming the first state to successfully leave the Union.

According to the state’s Declaration of Secession, the main reason for its exit was its desire to preserve slavery. The document also cited that the proposed actions and opinions of the then president, Abraham Lincoln, were “hostile to slavery.”

Arguments for the Right of Unilateral Secession

The US Constitution doesn’t recognize or deny the right of state secession in general. Nonetheless, the argument for the right of unilateral secession can be supported by the very nature of the US Constitution itself.

By the terms of Article VII of the Constitution, its legal enforceability came from the ratification of nine states. The document derived its initial power from these sovereign states’ voluntary act consenting to be a party to it.

However, secessionists argue that in the same way the states voluntarily ratified the Constitution, they could, in the same way, voluntarily and unilaterally withdraw their consent and cease to be part of the Union.

From this perspective, one could argue that the Constitution is a multilateral treaty of sorts. Its power and legal effect came from the sovereign states’ consent that agreed to be a party to it.

In the same way that sovereign nations can withdraw from a treaty, the same argument can be made for sovereign states seceding from the Union.

Arguments Against the Right of Unilateral Secession

On the other hand, we have to consider the arguments against the right to secede. Most of these can be found in President Lincoln’s inaugural address in March 1861.

If you’ve always wondered – Why did President Lincoln oppose secession – here’s what his thoughts were on the subject.

First, Lincoln asserted that the idea of a national government agreeing to its termination was absurd. No constitution in the world would offer provisions supporting its dissolution.

Second, Lincoln disputed that the Union was merely a “voluntary association.”

He further argued that even if it were, the very principles of contractual law would bar unilateral secession. Consent from all parties to a contract is required to rescind it. If one party pulls out, then they would be in breach of the terms.

Third, Lincoln further claimed the Union existed long before the Constitution, dating as far back as the Articles of Association of 1774.

All 53 signatories were British colonies, and as such, they declared their independence as a Union – the United States. According to him, this shows that the states were never “sovereign” to begin with.

Finally, Lincoln opposed claims that the Constitution doesn’t recognize or deny secession. The Constitution’s immediate predecessor – the Articles of Confederation-proposed creating a “…perpetual… more perfect… Union.” It sought to further strengthen the existing bonds between the states.

We can infer from Lincoln’s arguments that when the states entered the Union, they gave up their sovereignty and the rights that came with it, which is the right to unilaterally secede.

The Constitution on Multilateral Secession

So far, we’ve established that states cannot withdraw from the Union unilaterally.

The Supreme Court settled this matter in Texas v White, which also prohibits the expulsion of a state by the national government if the state in question wishes to remain part of the Union. The question is – Does the law allow secession if all parties are in agreement?

In Texas v White the Supreme Court made an exception for secession in two scenarios:

  • Through the consent of all the states in the Union
  • Through a revolution

The likelihood of the latter happening is slim to none. What is more probable is secession through mutual consent. This would have to be enacted by Congress.

In the same way that the legislature can approve a new state’s admission to the Union, so can it also let an old state leave.

In the case of the recently filed Texas Secession Bill, the legislation allows state residents to vote on whether the state should secede from the United States.

According to supporters of the proposed legislation, the move to secede is in response to a federal government that “…does not represent the values…” of Texas residents.

This would be the first step in a very long process that would require the rest of the states in the Union and the national government to consent to it.

Only Time Will Tell

The Texas annexation into the United States was not immediate. When Texas got its independence from Mexico and wanted to join the Union, the national government was concerned that doing so would trigger a war between the two countries. To avoid this, Texas remained an independent nation known as the Lone Star Republic from 1836-45.

It appears that Texas still craves the independence it once had. Whether or not their umpteenth secession attempt will work remains to be seen.

If the state is to secede, it will have to be by multilateral agreement. Unilateral secession, however, is out of the question.

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