Saturday, November 17, 2012

Nonsecessions

Secession petitions filed at the White House's "We the People" site have somehow become major news, thus leaving completely unremarked other important petitions like the recently expired petition asking the President to dance the hokey-pokey, or the current one asking him to attend a Fark.com party or else drink a beer with Drew Curtis, or the one demanding that he outlaw offensive comments about prophets of major religions. A few points of note:

(1) It is quite obvious that the point of the petitions (from all fifty states by now) is simply to force the White House into the embarrassing position of having to give a public response explaining why states should not secede. This is not a 'secession movement'; it's a prank.

(2) Texas leads the pack, by far, on signatures for a secession petition, so it's perhaps worth pointing out for any Yankees in the audience that the obvious reason why it's so far ahead of other secession petitions is that Texans are signing it in order to make sure that Texas comes in first when it comes to secession petitions. This is what Texans do. If, for instance, you were to go to any random place in Texas and start asking people whether they thought Texas should secede, you would have a significant number of people who would say 'Yes' for no other reason than to guarantee that there would be lots of 'Yes' answers to your question. (You would also have a significant number of people who would say 'Yes' because they thought it was a stupid question deserving a stupid answer. That's another thing Texans do: answer questions they regard as stupid with answers they regard as stupid, and then laugh at you when you go away taking them seriously.)

There is, of course, no major secession movement in Texas, and hasn't been in ages. Secession in Texas is a vocabulary and game, not a movement, and is a (deliberately) bombastic way of talking about the distinctiveness of the state. Likewise, when you are in Texas and overhear someone saying that someone should be shot, or that they will be beating someone to death shortly, you can generally assume that they are engaging in Texas hyperbole for 'So-and-so is completely wrong and starting to annoy me.' Deliberately bombastic hyperbole is also something Texans do. And, what is more, one reason Texans like talking about secession is that it elicits hilariously funny reactions from non-Texans who aren't in on the game.

(3) It should go without saying, but in case it doesn't:

(a) No, states do not under the current constitional regime have the right to secede.

(b) No, people cannot be stripped of citizenship for asking to secede. I am certain that most of the people signing this petition are just playing the game from the opposite side, but I note it just in case it doesn't go without saying. In fact, no one can actually be stripped of citizenship for anything; in the U.S., you can renounce citizenship, but no government has the authority to take it away from you without your consent; and merely asking to secede is neither a formal nor an implicit renunciation of citizenship -- it's just asking. Likewise, it is not treason to advocate secession.

(c) No, if the states could secede, the federal government would not have the authority to give parts of the state the right to secede from the state; the federal government lacks the constitutional authority to do this for states and lacks the jursdiction for doing it to independent countries.

(d) Yes, anyone who takes petitions on the White House's We the People site seriously is a little bit of a lunatic.

6 comments:

  1. MrsDarwin9:34 PM

    This makes me proud to have been a Texan. 

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  2. This is the best dissection of why Texans do any of the insane things Texans do (many) that I have ever, ever read.

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  3. Jarrett Cooper4:28 PM

    Hey, Brandon.

    For (a) No, states do not under the current constitional regime have the right to secede.

    Can you explain what you mean by that?

    I was under the impression that the states do have the right to secede from the union (though such talk makes one some lunatic fringe, and as one who longs for the days of Gone with the Wind, at least according to Chris Matthews). However, I do endorse the compact theory of the union (it has the historical backing and intention of the framers, IMO).

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  4. branemrys9:24 PM

    Hi, Jarrett,

    I am convinced by Lincoln's argument that the Constitution presupposes the regime in the Articles of Confederation, which established not just any compact but one involving a perpetual union and league of friendship; the Constitution, being enacted to form a more perfect (complete) union obviously cannot be understood to do so if it eliminates the perpetual union of states.

    This is connected with standing precedent for interpreting the Constitution on this issue. The state of Texas argued in the Supreme Court case Texas v. White that all secession governments are illegal and cannot be recognized under the Constitution, an argument with which the Supreme Court agreed: and this is the major standing precedent for interpretation. One could argue that the Constitution shouldn't be interpreted this way, but it is the interpretation in residence, so to speak, and thus under our current constitutional regime, states do not have the authority to secede (nor can they be expelled, nor can they be allowed to secede).

    Of course, as you note, there is an old line of interpretation that holds differently. I don't think it works. I do think, a la Declaration of Independence, that a reasonable argument can be made that, given sufficient cause, states can revolt, at least with moral authority. But revolution is distinct from secession, and moral authority to revolt is distinct from legal authority to secede. I am inclined to think that the Southern arguments for rights of secession were weak at best even when we were merely a Confederation under the Articles; under the Constitution I think they are weaker still, and after it was ratified I think the Southern argument was based on taking the U.S. to have a constitutional structure that had been modified in ways that made the Southern argument more difficult at best and probably unsustainable.

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  5. Jarrett Cooper10:01 PM

     Thanks for the reply, Brandon.

    I do endorse the "compact theory," i.e., the theory that the states together established the union.

    After all, it was King George III when signing the Treaty of Paris that recognized the 13 colonies as free and independent states (i.e., free and independent *nations*). In the Deceleration of Independence the states had the power to wage war, create peace strategies, regulate commerce, etc.

    When speaking about the Articles of Confederation... Articles II,  notes that the states retain their sovergnity, freedom, and independence.

    On top of that, it was the states that ratified the Constitution, the states preceded the Constitution. The Constitution doesn't bound the states, the states bound the Constitution.  It was entered through state voluntarism; and through state voluntarism, it can be exited. (So I believe to be the historically accurate position.)

    With regards to all the various Supreme Court cases and setting precedents. Reminds me of one man's quote about constitutional law, it has nothing to do with the Constitution.  It was tongue and cheek, noting that people go to law school and learn all the famous court cases and what precedent they set, but don't learn the history prior or present to the formation of the Constitution.

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  6. branemrys10:07 PM

    Well, I think two things need to be distinguished: what was the origin of the United States, and what is its actual constitutional regime? The two are completely different questions. There's no question at all that it originated in state compact. We have undergone several successive unifyings, however, that together have the implication, and indeed (particularly in the case of the U.S. Constitutions) were often actively advocated, as involving something considerably more than just a compact among states. We simply do not have a state-compact government today.

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