Secession

Toward the end of Lawrence Tribe’s book, The Invisible Constitution, he makes a curious claim: that a rule barring state secession was established more on the Civil War battlefields battlefield than the halls of courtrooms, congresses, or constitutional conventions.

I don’t find this persuasive.  Especially in light of recent (admittedly half-hearted) secession petitions making the rounds online since the 2012 presidential elections, it seems opportune to make a constitutional argument against secession—why secession is forbidden legally, not martially.

The Constitution’s text contains no mention of secession, so we will have to confront general themes and principles of the document—parts of what Tribe would call the “invisible constitution”: implicit facets of the written document

A Word for Secession

I’ll begin by using Tribe’s geodesic model: certain provisions of the constitution require tightly bounded expansions, or shields, to protect the full meaning and implications of explicit textual provisions.

For example, here an expansive reading of the 10^th Amendment may even suggest that the states retain sovereignty enough to go their own way should they so choose.  After all, the federal government nowhere empowered to prevent secession; therefore, secession remains to the states as an option should they choose to do so.

It’s worth noting that such an interpretation would require at least a myopic reading of the Necessary and Proper Clause, if not virtually ignoring the concept entirely.  But if any or all of the federal government’s domestic powers are to remain robust, or perhaps even to mean anything at all, the geodesic model (as contemplated by the NPC) must apply to congressional powers as well.

Argument Summary

None of Congress’ domestic powers can be effective if the states are free to leave (and thus to negate federal law) with impunity at any point they choose. 

Also limits federal policymaking if the states have that threat to hold over the government (game theory of policymaking—limited by what the states are willing to accept; neglects true locus of government decision-making and accountability: the people)

            Also, constitutional power-ups like the Necessary and Proper Clause and the Supremacy Clause would amount practically to nothing.  The states’ ultimate trump card would severely cuff federal legislators; they could not implement the full measure of their powers or of their preferred policies for fear of driving even one state to lawful secession.  Each state’s consequent veto power would make the supremacy of federal law exclusively ceremonial, and make the Necessary and Proper Clause an empty letter.

            Of particular note, I think, is the little-noted Republican Clause in Article IV, on which the only case I know of that dealt with secession (Texas v. White) rested.  The federal government cannot guarantee to every state a republican form of government if such states are free to unshackle themselves from federal control at any moment.

Texas v. White

            The only case I’ve read which dealt with the legal issues surrounding secession, White dealt with loans which Texas had accrued during the Civil War; following the war’s end, (I believe that) Texas claimed that since it had made those loans as an independent nation whose government had since collapsed, the loans were invalidated, and the state bore no continued duty to repay them.

            The Supreme Court ruled otherwise, declaring that Texas could not leave the Union; its supposedly new government had been entirely illegitimate, and as such the true legislature of the state was on the hook for the borrowed cash.  The Court hung its decision on the Republican Clause in Article IV, reasoning that the federal government would be deprived of its duty and power to guarantee each state a republican form of government if secession were legally permissible.

            This is the closest—I believe—that the nation or the Court has come to addressing the theory and legality of state secession.  I agree completely with the Court’s reasoning: without a tacit prohibition on secession, federal power, including the Republican Clause, would amount to almost nothing. 

This is especially true if one notices that Congress has also a duty to exercise certain of its enumerated powers; if not a duty written into the Constitution, then surely there is an expectation that such powers delegated will be responsibly and fruitfully exercised.  If the people, through their ordaining Constitution, gave certain powers to the Congress in the hopes that their nation would therefore become more perfect, then any state interference arising from a threat to dismember the union should not only engender outrage from the people, but legal condemnation on the grounds that such renders the Constitution’s plan moot, and places the states above the people as the nation’s ultimate sovereign.

Enervation of Domestic Powers

Such a principle implicates many of the other domestic powers of Congress.

            For example, the power over interstate commerce: how can Congress regulate interstate commerce if the states are free to bail, and thus to frustrate any such regulations whenever they choose?

            Further, the power over the common defense: a state free to leave at any point could easily become a staging ground for foreign invasion, a concept perhaps largely irrelevant in the modern era, but not when the Constitution was ratified (and possibly relevant again in the future).

            The threat of such departure, as well, would give each state an essential veto power, making Congress timid with the exercise of any of these powers.  Any and all federal domestic powers would amount to very little if the states could express a veto over all such regulations at any time by secession.  Though a blunt instrument, secession would produce a chilling effect on everything Congress does; any and every regulation, expenditure, tax, etc. would have to be passed so as not to offend the people or legislature of a particular state.

            Such chilling effects go well beyond the normal hesitation lawmakers must feel when enacting policy that risks offending their constituents.  I’m all for limiting Congress’ powers more than the present state of affairs evinces, but the power of such a threat goes beyond mere limitation into emasculation, rendering Congress’ powers largely ceremonial or hypothetical.

            The federal government cannot operate on the individual citizens when the states can intervene at any point by seceding.

            If the federal government may not act on the citizens directly, then we have no union; we have a confederacy.

            A confederacy is precisely what we had with the Articles of Confederation.

            The Constitution was erected to fix the problems of confederacy.

            Therefore, we cannot have a confederacy because the Constitution cannot be construed to recreate the very problems it was built to ameliorate.

Foreign Policy and Incomplete Sovereignty

            And on that note, it bears brief mention that the states do not possess the full measure of typical sovereign authority, especially in the realm of foreign relations (e.g. CASES).  As such, to secede would not just be to exercise a reserved domestic power as discussed under the 10^th Amendment above, but also to assume to the state the powers over foreign affairs expressly delegated to Congress.  To exercise the full measure of a sovereign nation’s powers in that manner is usurpation, not merely a necessary option in the residuum of state power.

Secession Procedures, or the Impracticability Thereof

If secession were a viable option, surely there would be in the plan that bound the states together some procedure for departure.  In the absence of such a plan, what would constitute an acceptable method?

As a hypothetical scenario: imagine a federal law so unpopular in a state that its citizens hold a secession vote.  Let us say for now that the law in question is the Affordable Care Act (Obamacare); this seems appropriate in light of the public outcry, and the refusal of several governors to accept federal funds to implement it.  Let us suppose that the state legislature chooses to send a secession bill to the citizens, who pass it narrowly by referendum.

            What would happen to all the people in the state who want to stay?

            How could the federal government guarantee a republican form of government to this new government in the future?

            Leaving this hypothetical momentarily: without any standardized secession procedure, what if a state legislature voted to secede against the wishes of a majority of the state’s residents? 
            In sum, what would an acceptable secession procedure be?  If the Constitution does not say, then how could it be determined?  Excessive confusion would ensue if each state were responsible for determining its own secession procedures—if a state legislature did vote to secede against its citizens wishes, then how would a newly elected body, sent to mend ties with the Union, go about re-entering?  The normal procedures for admitting new states into the union did not contemplate incorporating (or re-incorporating) sovereign nations.

14^th Amendment

            A brief word on the 14th Amendment: the themes covered here are the same as those relevant to other Congressional powers, but the 14th Amendment, because of its importance in modern American law, deserves singling out among those amendments which grant Congress enforcement powers beyond the powers in Articles I and IV.

           This amendment so radically changed the relationship between the states and the federal government that its enervation spells special trouble for the people as a whole, should a theory of secession so emasculate Congressional power as I predict it would.  See Akhil Amar’s “The Bill of Rights as a Constitution” for further elaboration on this point, but for the moment, trust that the 14^th Amendment’s powers changed the federal government into a sentinel over the states, the defender of the trampled minority.  To exhaust that power by threat of lawful secession would spell the end, essentially, of the 14^th Amendment’s powers.  Imagine if Arkansas had felt itself unbound by federal power, unrestrained by the Constitution, and free to depart at its pleasure after Brown.  There may never have been a Cooper v. Aaron; indeed, there may never have been a Brown at all.  Perhaps there only would have been a feeble federal government too concerned with another Civil War, or at least too concerned with a fractured union, to do anything about segregation.

The Equal Protection Clause’s right to interstate travel also would fall.  This isn’t worth as much discussion as the prior topics, merely worth a mention.  There can be no right to free interstate travel if the states retain the same authority as nation-states any more than there is a right to travel from the U.S. to Spain, or any other independent nation.

The states would likely still accept most federal regulations even should a right to secede be recognized, but the fact that they could leave at any time would deprive many or most federal laws of their practical effectiveness, because it would grant to the states, either to the people or the legislature, a permanent veto power.

A theory of secession is inextricably tied to the antiquated and rejected notion that the states are independent entities bounded together simply by each one’s mutual will and pleasure.  Such an idea ignores the clear postulate that the nation is bounded together, and ultimately accountable, to the people as a whole, not to the states.  The federal government is ordained by the people, accountable to the people, and supreme over the states.  The states have no power to disintegrate a union that they did not create.  Rather, the people molded the states into a new form, bounded together absent their consent as sovereign nations.  The people constituted a new sovereign, whose collective power overrode the fractured, disjointed powers of the states.

            “We the People…do ordain and establish this Constitution for the United States of America.”

            The last five words take on new meaning, then.  Those states, previously independent, are now united into a single new entity through the ordainment and establishment of We the People.

Concessions to Federalism

            A unified country where the national is superior to the parochial does not make the states feeble subdivisions of the federal government, necessarily.  The states could still retain exclusive control over certain areas of law and governance, as they do (or should) thanks to the 10^th Amendment.

            But Congress and the federal government as a whole are granted explicit supremacy in their domains, making them doubtlessly superior to the states.  And the collective character of those powers speaks to the indissolubility of the union.

            As such, the states may not unilaterally leave at their pleasure, because to do so would negate federal powers, ignoring the superiority of nation to state (and for that matter, the superiority of people to state and nation both), and enervating most federal powers and duties.  The articles of confederation failed precisely because the central government could not operate on the individual citizens, and had little practical power over the states.

Conclusion and Summary

The purpose of this essay was to provide some philosophical and legal force to the argument in Tribe’s book, which rests on military force

            It’s a curious claim, that the nation’s unity rests more on the threat of arms and superior martial might than legal or even moral force.  Our nation remains united because the federal government had/has the more powerful army? Hardly a principle befitting a democratic republic with the rule of law.

            The argument that the secession principle was settled on the battlefield—that the Union stands because the South lost—reminds one more of an empire than a nation whose power derives from law duly enacted from the consent of the governed.

Not Your Judges' Amendment

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

            --Our Ninth Amendment

Several weeks ago, I read a two-part article by Cornell Professor Michael Dorf on Justia.com’s constitutional law blog.  Professor Dorf wrote about Roe v. Wade because of its upcoming (at the time) fortieth anniversary, addressing common criticisms of the decision.  I address here his contention that it is no problem that Roe rested on rights nowhere explicitly granted in the Constitution.  The document, Dorf admits, contains no mention of either privacy or abortion. 

I argue instead that the 9^th Amendment should not be left in the judges’ hands because of the bottomless grant of power that that would represent to fashion new rights deemed “fundamental” with little to no yea or nay from the people.  Rather, the 9^th Amendment is better conceived as a reminder for the people, as a tool for civic education.  Better than a source of judicial power, We the People should take it as a reminder, passed down from one generation to the next, that we must protect our rights against overweening federal power.  We are better suited than judges to decide which rights we consider fundamental, anyway.

Dorf writes:

“So, what general language encompasses the right to abortion? The best textual answer would point to the Ninth Amendment…Under the most straightforward reading, that language says that there are unenumerated rights that limit the federal government.”

I don’t see any mention of the federal government in the text (but assuming it does, wouldn’t it also limit judicial power as part of the federal government?).  But that aside, we move on:

“Moreover, a provision of the Fourteenth Amendment tells state governments that they may not ‘make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,’ which, under a similarly straightforward reading, binds the state governments to respect the same rights, including the unenumerated rights, that limit the federal government.”

Dorf surely knows that the Privileges and Immunities Clause of the 14^th Amendment, though historically probably intended to impose the restrictions of the Bill of Rights against the states, failed to accomplish that end after The Slaughterhouse Cases, in which the Court read this clause very narrowly.  Although I don’t have any problem with advocating a forgotten clause’s renaissance, I think we should be clear that that’s what’s happening when Dorf makes that claim.

He goes on:

“Sticklers have long objected to the doctrine of ‘substantive due process’ that was used in Roe, but their real quarrel is with the Court, rather than the Constitution. The actual text—in the Ninth Amendment and the Privileges or Immunities Clause— provides a sound basis for the recognition of rights that are not expressly mentioned.”

Here is Dorf’s key problem, set up by the previous paragraphs.  He fails to connect the 9^th Amendment and judicial power; he fails to prove that judges ought to be the ones who give shape to those unenumerated rights.  That this amendment recognizes that the people retain rights nowhere explicitly granted in the Constitution is obvious.  That the judiciary is uniquely and exclusively empowered to define and elaborate these rights is not expressed in the Constitution nor argued by Dorf.

And that’s a huge gap, one that an academic should not be excused for neglecting.  In Marbury v. Madison, Justice Marshall committed a similar error: despite his solid reasoning for the proposition that a written Constitution, enacted as supreme law, must be preferred and override any subordinate law enacted pursuant to it, he fails to even address the question as to why judges are uniquely and exclusively suited to pass judgment on such matters.

Still, as Richard Posner noted: “Judges Are Not Law Professors”.  Where a judge has less opportunity and need to structure his or her opinions for optimal logical consistency, a law professor has both the incentive and the requirement to build his or her arguments thus.  Perhaps we can forgive Marshall for this oversight as We the People have had endless opportunities to remove this power from the Court’s hands.  In some sense, perhaps we have collectively consented to add this power into our unwritten Constitution. 

He continues: “Thus, critics of Roe who invoke the Constitution’s supposed silence on abortion must be prepared to jettison much more than abortion rights. The Court found an unenumerated right of married couples to use contraception in 1965 in Griswold v. Connecticut. Must that right also go?”

Yes.

Two points: the law in question in Griswold had not been enforced in ages when it went to the Court.  A few enterprising folks deliberately broke the law to test the law in court, even calling the police beforehand to ensure that they would be on hand to detain the violators.  As such, it’s hardly even a case or controversy in the Article III sense.  Second, married couples are hardly in need of the Court’s protection.  The use of contraceptives is so widespread and common in American culture that it’s hard to imagine any state, city, county, etc. passing a law banning their use, and having anyone take that law seriously at all.  This case and its rule could easily be forgotten and no one would be affected.

“And if the failure of the Constitution to use the word “abortion” means that Roe is wrong, then there would also be no constitutional basis for resisting a law that required a woman to have an abortion. The pro-lifers who denounce Roe cannot be happy with that consequence.”

Another two points: why would such a crazy policy need a constitutional basis for resistance?  Why is the normal political process not defense enough against such a law?  Why must it redound to the federal courts to protect us against all manner of the evils of state legislatures?  Second, it’s hard to imagine any state passing such a law.  I suppose we are less removed from the days of eugenics than any of us would like to admit, but I am willing to gamble that public support for any such law would be so low as to deter any state legislature or legislator who got a wild hair to improve society through genetic manipulation.

And again, even if that were to happen, I don’t see why it’s important or necessary to call the Constitution or the federal judiciary in to the rescue (not that it would necessarily help; famed justice Oliver Wendell Holmes, for example, favored eugenics policies).

I think Dorf and probably other legal academics fall into a familiar trap: to try to make the Constitution into a panacea for all of our social problems.  Many do this by making every good thing under the sun into a fundamental right.  Much as I hate to agree with such as Scalia and Rehnquist, I do believe that they were right when they counseled that the Constitution cannot be all goods to all people; that the Court must not and cannot become a roving social crusader; that judicial duty is not to do all good things to all good people.

Further, to avoid embroiling the Constitution in our mundane political battles, above which it must stand to maintain its broad, deep legitimacy, it is best to restrict our definition of fundamental rights to those on which we, as a nation, can widely agree.  A fractured public, one which cannot seem to agree on the status of abortion as a fundamental right, or even derivative of any fundamental right, shows that such a right is not fundamental in our cultural or legal understanding.  I have argued in a previous entry that substantive due process, or fundamental rights jurisprudence, should not extend to those rights on which there is not a deep and broad consensus in our culture, without which it is nearly impossible to argue that such a right is indeed fundamental.  If not on consensus, it seems to me that there is little remaining place on which to ground that adjective.

But to return to my own view on the 9^th Amendment: I think it’s better to entrust its care to the people rather than the judges, who are in no special position to define a fundamental right, certainly no more than the nation as a whole.  When the Bill of Rights was ratified, it was not understood to be a set of judicial weapons, but rather tools by which the people ensured that they could keep a very close eye on their delegates.

Perhaps the earliest exercise of constitutional review in our history came from the people themselves, not from the judges.  After the Alien and Sedition Acts passed, no court ever ruled on the law despite its clear violation of the 1^st Amendment.  Instead, the people passed their judgment by acquitting accused violators through jury review, and tossing out the Federalists at the next congressional election.

While I’m not exactly an advocate of popular constitutionalism in most cases (because I think it would be a rare thing for the people to speak out with a such a clear, unitary voice in most such matters), I support its use here.  The 9^th Amendment gives the courts a blank check of constitutional power to deem any right they like as fundamental.  In the absence of a principled limit on the exercise of such power, I cannot support its use by the courts.

Post-Script:

            Dorf is at it again in a short book he co-wrote in the early ‘90s with Laurence Tribe, On Reading the Constitution.  They argue in chapters 2 and 3 that the Ninth Amendment is the only interpretive rule in the Constitution, that it forecloses the argument that a right may not be claimed or applied through the Constitution because it isn’t in the text.  Therefore it may serve as a general repository for other “fundamental rights” which the text does not specifically mention.

            Not to mention the many other areas for creation of fundamental rights which Dorf allows.  The Due Process Clause and the Privileges and Immunities Clause, of course, come readily to mind.  It should be clear by now that Dorf (and Tribe?) read ample space for judicial creativity into the Constitution.  What they neglect to include is a method, some principled way to cabin that creativity.

            Dorf here commits the same slipshod reasoning, failing to explain why judges are or should be empowered to fashion new, supposedly fundamental rights from the Constitution’s text.  Especially strange is that this prescription comes immediately after multiple admonitions that no one may legitimately interpret the Constitution by imposing into it his or her own views.  After analyzing some hypotheticals in which Dorf and Tribe argue that a law which intrudes into family life by regulating mealtime behavior would violate a fundamental right to autonomous family conduct, they proceed not to argue for the notion that judges should have power to nullify those laws on theoretical grounds, but only refer to Supreme Court precedent, substantive due process cases from the 1920’s.

            In a book on how to read the Constitution, I did not expect to find the implicit argument: precedent is always legitimate.  I expected these two Ivy League professors to explain to me why a 9^th-Amendment based fundamental-rights reading of the document would be permissible for judges to do and enforce, to explain why dreaming up fundamental rights that we’d like to have in the constitution in a perfect world.

            Family autonomy may well be a fundamental right; it may well be a cornerstone of someone’s natural-law theory of justice and governmental power.  I would be happy to accept such a theory.  But Dorf and Tribe, surprisingly, make no effort to explain why it’s a constitutional right.

            We commit a grave error, in my estimation, when we equate a fundamental right with a constitutional right.

            We commit an even graver error when we hand the power and the duty to discover and enforce those rights to an unelected judiciary whose views need not reflect the people’s own.