The Civil War Didn’t ‘Settle’ The Question Of State Secession

By Brian McGlinchey at Stark Realities

Secessionist inclinations are on the rise in the United States, and are sure to intensify after Nov. 5 regardless of which party prevails. When that happens, you can expect the accompanying discourse will be peppered with assertions that states have no right to secede, with many declaring the question was “settled” by the Civil War.

The embedded contention that legal and moral questions are rightly and permanently settled by the outcome of a mass-murder contest is absurd on its face. However, the notion is so widely and casually embraced that it invites an emphatic response. It also serves as a starting point to address other flawed forms of secession skepticism.

Written by a socialist in 1892, the Pledge of Allegiance attempts to program Americans into internalizing a falsehood: that the United States is “one nation, indivisible.” On that score at least, the deeply-flawed pledge isn’t working on a large number of citizens.

A YouGov poll taken earlier this year found substantial slices of both major parties would support their state’s departure from the union: 29% of Republicans and 21% of Democrats. Similarly, the five states in which secessionist yearning is highest represent a mixed bag of red and blue: Alaska (36%), Texas (31%), California (29%), New York (28%) and Oklahoma (28%). While 23% of all Americans want their state to secede, 28% would be content if other states did so.

For now, the Lone Star State seemingly has the strongest separatist momentum. In a June victory for the Texas Nationalist Movement, the Republican Party of Texas adopted platform planks proclaiming the state’s right to secede, and urging the legislature to arrange a state referendum question on the issue in the next general election. Many other states have secession movements of their own, and this July alone saw the launch of Free Louisiana and NHEXIT Now, the latter representing a rebranded drive for an independent New Hampshire.

It’s only natural that secession interest is highest in some of the reddest and bluest states, where citizens have the most to lose via the imposition of centralized federal dictates that emphatically clash with local preferences. Those anxieties over which party governs Washington, and the animosity between the two principal opposing camps, will only grow as Election Day nears and could skyrocket after the votes are counted.

It shouldn’t be that way: As I wrote in January here at Stark Realities, “the intensity of our division springs from a federal government operating far beyond the limits of the Constitution — fueling a fight for control over powers that were never supposed to exist at the national level.” Sadly, that dynamic isn’t going to change anytime soon, which means secessionist impulses are sure to ratchet up when the returns pour in on Nov. 5. The only question is whether that ratcheting will be strongest in blue or red states.

Either way, you’re sure to hear plenty of social media users, TV pundits and purported experts proclaiming that the question of whether states have the right to leave the union was “solved by the Civil War” — meaning that, since the seceding states’ armies were defeated, the answer is a firm “no.”

As the Mises Institute’s Ryan McMaken wrote in Breaking Away: The Case for Secession, Radical Decentralization and Smaller Polities, “Those who invoke this phrase…are signaling that they believe any attempt at secession justifies military invasion and occupation of separatist territories.” No reasonable person would apply that blanket proscription on foreign peoples, so it’s all the more strange to see Americans apply it to their fellow citizens — particularly when you consider that America is itself the product of secession.

As stated in the Declaration of Independence, “Governments are instituted among men, deriving their just powers from the consent of the governed…whenever any form of government becomes destructive of [inalienable rights], it is the right of the people to alter or to abolish it and to institute new government.” The idea that the federal government’s conquest of seceding states in the mid-1800s would somehow obliterate that right is as un-American as it is illogical.

Though the Civil War has conditioned many Americans to associate secession with war — and to reflexively recoil from it on that basis — secession is not an inherently violent proposition. Secessionists don’t seek to destroy a government, only to remove themselves from its domain, consistent with their right of self-determination.

As showcased in dozens of separations around the world since 1776, peaceful secession is a gentle remedy for political incompatibility. The determination of whether a secession is peaceful or not is ultimately in the hands of the incumbent central government, and not those who seek to leave its control.

Some Americans struggle to approach the secession question with intellectual honesty because their thinking is fogged by feelings of vindication associated with the Civil War — feelings compounded by the widespread myth that the war was entirely about slavery and was therefore nothing less than a battle between good and evil.

To many, the very idea of secession is associated with sinister motives, even though the United States and many other countries came into being via secession, with no malicious intent.

Looking back to the run-up to the Civil War, slavery-abolitionists themselves championed secession, pushing for northern states to abandon the union. They sought not only to distance their states from slavery, but to undermine the institution by negating northern states’ legal obligation to send runaway slaves back to their masters.

Not that long before launching his war of choice that killed upwards of 850,000 soldiers and civilians for the paramount purpose of preserving the union, Abraham Lincoln himself vigorously endorsed the universal right of secession in an 1848 speech:

“Any people anywhere…have the right to rise up and shake off the existing government, and form a new one that suits them better…Nor is this right confined to cases in which the whole people of an existing government, may choose to exercise it. Any portion of such people that can, may revolutionize, and make their own, of so much of the territory as they inhabit.”

Venturing beyond the paper-thin “might makes right” Civil War argument, secession skeptics also point to the Supreme Court’s 1869 ruling in Texas v White. Though that case centered on a dry financial issue, it hinged on whether Texas was still part of the United States even after it declared its secession.

In a 5-3 decision, the court asserted that Texas had never really left the union because neither it nor any other state has the power to do so. In his majority opinion, Chief Justice Salmon Chase — a Lincoln appointee who may have been inclined to affirm the justness of the astoundingly bloody Civil War four years after it ended — wrote:

“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.”

To justify that conclusion, Chase embraced the fiction that the United States is a monolithic entity, one that vaguely “began among the colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations.”

Chase’s opinion places great weight on the Constitution-preceding Articles of Confederation’s statement that “the union shall be perpetual.” His argument also relies heavily on the Constitution’s preamble, which refers to the states’ desire to form a “more perfect union.”

Through mere juxtaposition of the two phrases, Chase would have you believe that a supposedly indestructible, one-nation monolith created under the Articles of Confederation (it wasn’t) was merely given a polish by the Constitution, rather than a complete reformation that required each state to affirmatively accede to the new arrangement. The Texas Nationalist Movement has concisely skewered Chase’s short-circuiting rationale:

To reinforce his belief that the United States was a “perpetual union,” he had to assert the ludicrous argument that the United States Constitution was merely an amending document to the previous Articles of Confederation, citing the Preamble to the Constitution. He then had to ignore that it only took 9 States of the original 13 to ratify the Constitution of 1787 and that, had less than 13 States ratified, it would have destroyed the “perpetual union” allegedly created by the Articles of Confederation.

As with so many other cases in the high court’s history, Texas v White was wrongly decided. However, even those who credit the decision must acknowledge that it left the secession door cracked ajar: In the passage quoted above, Chase offered an avenue of Supreme Court-sanctioned secession via “consent of the states,” though it’s unclear how that would be put into practice.

Others who attempt to deny states’ right of secession point to the Constitution’s lack of a provision for a parting of ways. For example, while campaigning for the 2024 GOP presidential nomination, former South Carolina Governor Nicky Haley said, “Texas has talked about seceding for a long time. The Constitution doesn’t allow for that.”

While the Constitution doesn’t address secession, it does have a provision that implicitly grants that power to the states. According to the 10th Amendment, “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Since the Constitution does not expressly deny the states of that power (nor delegate it to the central government), secession is reserved to the states.

Even by itself, the word “delegated” further substantiates states’ right to secede, by underscoring that the United States was formed as a compact of independent states — with “states” used in a sense that puts Pennsylvania on par with Mexico or France. Those sovereign states created the federal government to serve them, only granting the new entity powers that James Madison described as “few and defined,” while the states retained powers that were “numerous and indefinite.”

“Delegated” validates that the states are rightly the masters of the federal government they created, and should therefore be free to voluntarily exit the compact just as they voluntarily entered it. As historian Brion McClanahan argued in a 2015 speech, “Sovereignty can be delegated, but a delegation assumes the ability to rescind that power.”

Speaking on the Constitution’s 50th anniversary, former president and statesman John Quincy Adams said:

“If the day should ever come, (may Heaven avert it,) when the affections of the people of these states shall be alienated from each other; when the fraternal spirit shall give away to cold indifference, or collisions of interest shall fester into hatred…far better will it be for the people of the disunited states to part in friendship from each other, than to be held together by constraint.”

One can debate whether the conditions Adams dreaded have fully descended or are merely imminent. Either way, when one also considers that the federal government is not only operating far beyond the bounds of the Constitution, but is also $35 trillion in debt and on an autopilot course for insolvency, the case for peaceful American secessions has never been stronger.

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Stark Realities undermines official narratives, demolishes conventional wisdom and exposes fundamental myths across the political spectrum. Read more and subscribe at starkrealities.substack.com  

Views expressed in this article are opinions of the author and do not necessarily reflect the views of ZeroHedge.