Is Secession Legal?

22nd October 2013 Tom Woods 6

A fun little chat with Brion McClanahan, author of The Founding Fathers’ Guide to the Constitution. (Next month, incidentally, I’ve been asked to speak on secession at St. Louis University School of Law.)

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TJ

I’ve listened to the whole series on the Constitution at Liberty Classroom and Brion McClanahan’s lecture on the legality of secession is one of the best. He is so animated and passionate about these topics.
Texas Chris

Any society that accepts divorce on the grounds of abuse must also accept secession on the same grounds.
John Minehan

Insurrection is not Constitutionally legitimate. On the other hand, there is nothing in the Constitution prohibiting peaceful Secession, as in Czechoslovakia’s “velvet divorce.”
Sarah Goodwich

It’s a question of national sovereignty. The federal government began claiming national sovereignty over the states c. 1833 under Jackson, and enforced it by military coercion under Lincoln.
However they are still individual sovereign states under the actual law, by original intent and understanding; and a state can do whatever its sovereign People decide; i.e. just as they acceded to the federal compact of the Constitution by popular state convention, they can secede from it the same way. The federal government has no authority to hinder them, any more than to stop Canada from seceding from NAFTA or the UN.
Sarah Goodwich

Secession can ONLY be legal, if each individual state is a nation unto itself. Simply saying “each state is sovereign,” is not enough; since state sovereignty can be relative, as in the case of individual states within a federated state; or it can be absolute, as is the case with a sovereign nation.
However, the federal government has long argued that the USA is a federated state; and has exercised national authority over them on this basis, including Total War. Therefore, any argument for secession MUST counter this claim, but expressly say that “each state is a sovereign nation unto itself.”
Conversely, FAILING to expressly say this claim, implies concession of the federal claim that each state is NOT a sovereign nation unto itself, but are territories of the USA proper as a single collective sovereign nation.
To paraphrase William Feather, that’s “the single fact which destroys the otherwise most interesting arguments.”
Sarah Goodwich

But he’s not a legal scholar, and therefore fails to address the legal issue of secession in its proper context of International Law.
By law, only a sovereign nation can autonomously act at will; otherwise, it is lawfully bound to the will of its respective reigning sovereign authority. The US government currently expressly claims to represent this power, and the individual states fail to expressly contest it; therefore they implicitly concur.
Thus, UNTIL the states expressly assert their individual sovereign national authority, they cannot secede.