Jan 17

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Constitution Check: Where does the U.S. stand now on secession?



Posted 1 year, 3 months ago.

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Lyle Denniston looks at the White House’s response to secession petitions, and how the idea extends beyond America’s shores.

The statements at issue:

“Free and open debate is what makes this country work…But as much as we value healthy debate, we don’t let that debate tear us apart….Our Founding Fathers enshrined in the Constitution the right to change our national government through the power of the ballot – a right that generations of Americans have fought to secure for all.  But they did not provide a right to walk away from it…The founders established a perpetual union.”

– Jon Carson, director of the White House Office of Public Engagement, in a statement just released under the title, “Our States Remain United,” responding to petitions to the White House by Texas and seven other states seeking the right to withdraw from the United States and form separate new governments. The Texas petition got the most signatures – 125,476 – and thus, under White House rules, merited an official reply. (Constitution Daily discussed the Texas petition in this post in November.)

“Don’t worry, that isn’t something we’re going to do this session.”

– Joe Straus III, of San Antonio, the speaker of the Texas House, in remarks about the secession idea on the opening day Tuesday of the state legislature, as quoted in a story Wednesday in The New York Times.

We checked the Constitution, and…

The Union’s lasting character does not depend upon the judgment of a White House official, but the current practice at 1600 Pennsylvania Avenue of inviting Americans to lay out their ideas for governing in written petitions is a valuable addition to the ongoing national conversation about public policy. The invitation has become such a popular thing that the White House’s “We the People” website says that more than 9 million signatures have been filed on petitions in the past 16 months.

The secession idea embraced in eight of those petitions is obviously gaining some popularity (the petitions filed at the White House had drawn a total of 357,809 signatures by mid-January, with the Texas filing clearly in the lead with more than a third of that total). And the movement is obviously drawing some publicity, and so its ambition has some chance of spreading. The backers say they are in this campaign for the long run.

What would make the campaign a teaching opportunity for the nation, of course, would be for the discussion to grow beyond a White House website, and lead to a genuine debate about the grievances driving the movement, about the history of secession (it did not begin with the departure of Dixie before the Civil War, but started when the new nation was only 25 years old, at the disgruntled Hartford Convention), and about the pros and cons of preserving the Union in an era when limited government is a rallying cry for many Americans.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

Just as America is having a revived conversation about the Civil War, and especially about slavery, as an obvious cultural side-effect of the wide popularity of the recent movie Lincoln, it perhaps could benefit from a new discussion of the Supreme Court’s 1869 decision in Texas v.White, declaring that the Union was constitutionally indestructible. (The White House statement about the secession petitions provided a quick link to the text of that ruling.)

What if Hollywood, or some creative documentary producer, put together a re-enactment of the arguments in that case, dramatizing what was at stake? What if college debaters made it a topic for their exchanges? Would that have a chance to make the conversation about secession enlightening? Did America, which once had struggled so mightily for its own right of independence and self-determination, learn something about national solidarity in the years after the Revolution? What was it about Southern secession that made preservation of the Union become so vital? Actually, that was Lincoln’s first objective of the Civil War; only later would it become a war to end slavery.

If one looks beyond America’s shores, one can see a serious debate going on about secession in Europe–there are separatist movements, of greater or lesser intensity, in Scotland, and in parts of Belgium, Germany, Italy and Spain. That agitation may come to nothing (although the British government is taking the Scotland initiative very seriously), but that is not to say that the exploration of the reasons for wanting to part ways is a useless undertaking.

One might say that America’s northern neighbor, Canada, was strengthened as a nation by the years of debate over Quebec separation, even though Canadians ultimately rejected the idea.

In the style of current American political discourse, including its discourse about the Constitution, slogans and shibboleths often displace mutually respectful debate. Talk of secession is likely, in that environment, to be dismissed as loony.

And, the reality may be that secession is a very bad idea for America. Given the clear constitutional barriers to it, it does not seem to be a realistic aspiration. As the speaker of the Texas House said, secession is not going to happen. But his mere mention of it did suggest that it is not a forbidden topic. The White House, after all, took it seriously enough to reply.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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