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Secession is in the air, as it was for at least thirty years before the first civil war. This time people talk about it, and a few states even have organizations to investigate or promote the idea. The standard response to initiatives that point toward secession is, “The Civil War settled that question. States do not have a right to secede.” The unspoken suggestion is, do not waste your time with pointless thoughts.

Constitutional and Historical Background

The issue is more complicated. First thing to note is that the Constitution is silent on the matter of secession. The preamble refers to a ‘more perfect union’, which means a union more securely grounded in law. The Constitution does not speak of a permanent union, nor does it deny a right of secession to the states. Of course it does not grant a right of secession, either.

The rebellious colonies, soon to be states, enacted the Articles of Confederation during the Revolution in 1777, ratified them in 1781, and replaced them with the Constitution in 1789. Under the Articles, each state assumed, correctly, that membership in the confederation was entirely voluntary. That is, any state could leave the confederation any time. They would not even have thought of the exit as secession, any more than you would secede from your local Rotary Club.

The states recognized the Constitution as a more binding arrangement, but few of the people who voted to ratify the document would have imagined their commitment extended to generations not born. They recognized the significance of the commitment they made in the present, but like Jefferson, they would say members of future generations should decide for themselves what political arrangements suit them best.

Many, like Jefferson, would not have supported ratification in 1789, had the Constitution revoked the states’ right of secession for all time. Others, like Hamilton, would not have supported ratification if the new Constitution had guaranteed a right of secession. Americans had a reason, nearly fifteen years after Lexington and Concord, to leave the question alone. The Constitution could not settle everything. Certainly it did not try to bind the states to a commitment that could only make ratification doubtful.

Only the Tenth Amendment touched on issues of state power. It dealt with delegatable powers, as close to the matter as the new Constitution would come. It reserved for the states, or to the people, all powers not delegated to the federal government. John Calhoun of South Carolina would say forty years later that these undelegated powers permit states to leave the union, at each state’s discretion. Others would say ratification in 1789 has no meaning if a state can revoke its commitment to the union any time it likes.

You could also say North and South fought the Civil War of 1861-1865 to settle this question. Certainly people at the time saw the war in that light. Contemporaries acknowledged, of course, the moral issue underneath the conflict – whether people of one race can own people of another race – but constitutional questions about secession formed the initial and lasting causes of the conflict. That is why Lincoln tried to subordinate slavery to this key constitutional issue for most of the war.

Because the states settled the issue by arms, the settlement they reached has no more authority over citizens a hundred and fifty years later than any other agreement imposed by force. We subscribe to precedent because it is practical, but force makes a weak precedent. The side that loses waits for a new day, even if the new day arrives decades or centuries later. For some matters, especially military defeats, people have long memories.

To return to constitutional law: precedents, including fundamental law, make our lives together possible. Consequently, we obligate ourselves to these agreements voluntarily. Outside of these loyalties and traditions, which mark our respect for sacrifices our parents made for us, we are all Jeffersonians. That is, parents cannot bind their children, grandchildren, or any other progeny to one political arrangement or another. Offspring have to decide for themselves how they want to live, which includes the laws and institutions they fashion to ensure order and prosperity.

These principles of loyalty, freedom, and generational autonomy underlie most of our democratic traditions. If you believe these principles govern our life together, you do what you can to contribute. Most of the people who fought in Charlottesville do not think in these terms, but no one would call these groups democratic. They believe in their principles, but they are not the founders’ principles.

If 1787’s written Constitution had tried to bind states and individuals in perpetuity, how many independent-minded, self-reliant Americans would have overcome their doubts about concentration of power to support ratification? State by state votes on ratification, a process that lasted nearly two years, became a close-run contest. Hamilton, Madison and Jay wrote the Federalist Papers to plead the constitutionalists’ case.  The federalists almost lost.

Citizens were so skeptical of the new Constitution, they insisted on a Bill of Rights before they would vote for ratification. They regarded these ten amendments as protections for states as well as individuals. Skeptics wanted the federal government to serve the states, not the other way around. Fundamentally, they wanted original sources of power to remain with the states, or with property owners within those states. Hamilton and Madison wanted the states to subordinate their interests to those of the national government, especially in matters of finance. In every other area, they made the best case they could for a stronger national government. These arguments for subordination did not include a promise in perpetuity to remain a member of the union.

Even if North and South had managed to reconcile their disagreements about membership in the union without war, few statesmen from either section would have argued after settlement that their legal authority extended to individuals of the twenty-first century. As it was, during Reconstruction, Washington could not even maintain authority over New Orleans.

Because our forebears fought the Civil War to settle disagreements about membership rights by force, the outcome of that struggle is legally fraught, especially for those who lost the war. Movements to erase all historical marks of pride and honor appear a perfect provocation, if you want to agitate a defeated people to resist. Jurists and other observers often say that in a democracy, no question is settled forever. That is especially true for constitutional questions resolved through war.

For the South, Lincoln, Grant, Sherman, and the armies they led invaded and conquered their territory. For the North, as Lincoln always carefully stated the matter, the southern states did not actually leave the union, as the nation’s unwritten law did not permit such an action. For him, the union army had to put down a rebellion within the states. He did not recognize the Confederacy, and so did not recognize people in the South had formed a separate political entity. Therefore the war could not be a war of conquest.

We need to reconstitute our republic. We have travelled a long way from 1787 and 1865. Friends can clear the air when they say, “Let’s talk about…” Enemies do not know whether reconciliation, separation, or continued fights will result from meetings designed to alter our fundamental laws until they try.  We need a new convention, a series of meetings for delegates from as many states as have an interest in our country’s political future.

The results of such a meeting could be disappointing, but with the advent of violence like that in Charlottesville, the outcome could hardly be worse than the civil conflict we have witnessed since the Great Recession. Attendance at the convention would carry an implicit disavowal of force to settle our conflicts. Because opposing sides have arrayed themselves for a fight, I don’t believe such a series of meetings will happen. They might have been possible ten years ago, but we missed our opportunity as the Great Recession built to its awful outcome. The suffering people underwent during that time brought us to the bitter, ignominious place we find ourselves now.

I wanted to write on this subject only because people so readily dismiss the idea of secession, when legal, historical, and philosophical foundations for such a dismissal are weak. To be open to everything our future brings, we ought to consider anything reasonable. Secession may not sound reasonable on first hearing, but a second war to force involuntary union does not sound like a reasonable or practical alternative to me. It fact, it sounds foolish and self-destructive.

Applications to Current and Future Politics

Mike Riggs makes a good argument in the article below about the value of civil behavior from white supremacists. Maddeningly, and sadly, the same is true of the privileged campus left: you cannot violate the social contract and expect anything good to come of it.

Treating your opponents with respect is a basic part of the social contract, as Riggs points out. His remarks also reveal, if you think about what they imply, we no longer have a social contract, as a nation. Each tribe has one.

Mitt Romney says in a Facebook post that if the president does not offer proper leadership after Charlottesville, the social fabric will begin to unravel. He misunderstands where we stand at the moment. It started to unravel a long time ago. The process is well advanced now, some might say nearly complete.

The first time around, in the 1860s, a four-year war managed to hold the nation together. A war will not accomplish the same end this time. If people feel no loyalty toward their government or their nation, these things exist not as voluntary organizations, but as instruments of coercion. Majorities no longer rule based on anyone’s consent. That’s not a democracy, or a republic, or anarchy. Nor is it a dictatorship, yet.

I’ve argued for almost ten years that breaking up the country without a war is better than use of coercion to keep it together. Yet all signs – from leaders as well as those they lead – direct our energies toward primitive but proven means of social control on one side, and an increasingly forceful response on the other. That suggests willingness to fight rather than divorce.

No separated couple I have ever heard of prefers continued fights to reconciliation or divorce. Why should our nation have a different set of priorities in its life? If you say, ‘not my president,’ why do you not ask your estranged partner for a divorce? Is the stigma of a breakup too great? Do loss of power globally, and consequent fears about national security, hold us back? Like most nations, we have craved recognition and stature from fellow nations since our infancy. A breakup means we have to admit failure. A breakup does not make America great again.

If you receive fulfillment from living in a nation that can drop bombs and deliver cruise missiles wherever it likes, breakup does not seem a good idea. Don’t you want to be part of the most powerful nation in the world? If you do, why would you want to spin yourself off from Washington, seat of the most powerful empire history has ever seen? Who wouldn’t want to bawl USA USA USA at rallies to celebrate after our Seals assassinate bin Laden, or feel all the patriotic sentiments that come with being part of a great nation, where greatness means power?

Ask people in eastern Europe what they think of a question like that. Ask them whether they think their quality of life depends on affiliation with an international power center. People in the former Soviet Union escaped an oppressive regime when the Russian empire broke up just under thirty years ago. Vladimir Putin will tell you it was humiliating, but people who escaped Moscow’s rule would not say so. U. S. history is a lot different, but empires do break up, for reasons we wish we understood. Peaceable separation for our country may appear incomprehensible to most at this point, but afterwards people may wonder why they did not pursue it sooner.

Much more than a marriage between two people, political unions are marriages of convenience. When a union becomes an oppressive burden, participants can dissolve it. If dissolution appears too difficult, consider the costs of keeping it together.

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Holman Jenkins from the Wall Street Journal talks about events in Charlottesville.

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