The Lost State of Missouri

[Emsworth]

The intention of this article is not to make an argument for the legality of secession although that is the premise on which it will continue. While not accepted by most scholars, it is my view that the Southern States did indeed leave the United States of America and were not again members until May 5, 1865 when the Confederacy was dissolved.

I realize that the point of the article is not to defend the legality of secession. However, since the whole argument is based on that premise, I would suggest that secession is indeed unconstitutional.

Secession is prohibited by Art. VI, Cl. 2: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." If the Constitution and laws of the United States are supreme, it follows that no state may nullify them. However, when a state secedes from the union, that is precisely what it is doing: nullifying the effect of the Constitution and the laws of the United States.

One may ask the question, what does "secession" mean? Semantically, secession is the act of leaving the union. But substantively, secession is nothing more than a declaration that the Constitution and the laws of the United States no longer apply to a particular area. Such an action is clearly forbidden by the supremacy clause. Thus, I would disagree with the underlying premise of this article.

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On the contrary, it can be argued that Virginia did indeed approve of the creation of West Virginia.

The state of Virginia declared its secession from the United States in 1861. Soon after the declaration was made, a group of delegates representing western Virginian counties convened in the city of Wheeling. This convention passed an ordinance, in the name of the People of Virginia, "reorganizing" the government of the state and establishing a new legislature. Thus, for a short period of time, there were two distinct bodies that claimed to be the legitimate legislature of Virginia: one favoring the union, and one favoring the confederacy.

The pro-union Legislature of Virginia assembled in Wheeling declared its consent to the formation of West Virginia. Thus, the Constitution's requirement that a state's approval is required for boundary changes was met (assuming that the Wheeling legislature was legitimate).

[Emsworth]

If this view of the article were correct, then the independence of the Phillippines and the return of the canal zone to Panama would be unconstitutional. Many will justify this by arguing that because they weren't fully incorporated territories that therefore the supremacy clause did not apply according to supreme court decisions.

That is not how the independence of the Philippines and the return of the canal zone can be justified. It is true that the Constitution, including the supremacy clause, applies in these areas. However, there is a very important difference. Article IV, Section 3, Clause 2 provides: "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."

Surely, this clause entitles Congress to "dispose of" the Philippines or the Panama canal zone. There is no analogy, however, in terms of unilateral secession by a state.

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It was not legally necessary; that was only a political reality.

I do not believe that the government in western Virginia was the "real" government of the state. However, when there are rival governments within a state, Congress has the power to determine which one is legitimate. In Luther v. Borden, the Supreme Court held, "Under the fourth article of the Constitution, it rests with Congress to decide what government is the established one in a State. For, as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not."

Thus, the question of which government was legitimate was not a judicial question. It was resolved by Congress that the Wheeling government was the legitimate one; this decision cannot be amended.

[Emsworth]

Under your interpretation of why secession is unconstitutional, it doesn't matter if congress has the power to dispose of a possession or not. No matter who carries it out or how it's constitutionally justified, such cessions of territory still amount to "nullifying the effect of the Constitution and the laws of the United States", which you previously stated was in all cases unconstitutional.

"Nullifying the effect of the Constitution and the laws of the United States" is not unconstitutional where the Constitution explicitly allows it. And the Constitution specifically permits such a nullification in the territory and property of the United States.

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As the Supreme Court held in Luther v. Borden, Congress must determine which government is truly established, before deciding whether it is republican or not.

A case could certainly be made that the Virginia legislature in Richmond was the illegitimate one. The Virginia Declaration of Rights reserves the right to reform the government to a majority of the People: "a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter or abolish it, in such manner as shall be judged most conducive to the public weal." The Virginia Constitution did not vest in the General Assembly a power to call a convention. However, such a convention was called solely by the action of the General Assembly, and such a convention declared secession from the United States. Thus, it could just as well be argued that the confederate legislature had usurped the authority of the People, and was "illegitimate."

[Emsworth]

The Constitution also says that the powers not delegated to the United States by the Constitution (such as the power to dispose of territory), nor prohibited by it to the states, are reserved to the states. The power to nullify the Constitution in states is not delegated to congress, nor is it prohibited to the states in the list of prohibitions in Art I, Sec X. Therefore the right to leave the United States is reserved to the states.

The power to nullify the Constitution in the states is indeed prohibited to the states, by the supremacy clause. The power to nullify the Constitution (by ending all American jurisdiction) in the territories is not prohibited to Congress. Thus, one cannot compare the two situations.

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Indeed, as I said, I would argue that both legislatures, in Richmond and in Wheeling, were illegitimate (the former being in rebellion against the United States, the latter lacking any legal authority). However, as I indicated, the question of legitimacy in such a case is one that must properly be resolved by Congress.

[Emsworth]

The supremacy clause making no distinction between states and territories and yielding to the right of components to have ties dissolved ought to suggest that an argument that states and territories cannot be compared is invalid. Therefore states have the Constitutional right to have their political bands eviscerated, and the question of who dissolves these bands is most obviously pointed out in the 10th amendment.

On the contrary, the supremacy clause does (albeit subtly) make such a distinction. We need to keep in mind that, on the one hand, Congress is terminating the effect of the Constitution in a territory, and on the other, a state is purporting to terminate the effect of the Constitution within its own borders. 

First, let us consider the case of the states. The supremacy clause states, "This Constitution ... shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Thus, any state law that purports to nullify the effect of the Constitution of the United States is void.

Next, we may consider the altogether different case of the territories. The supremacy clause states that "the Laws of the United States which shall be made in Pursuance [of the Constitution] shall be the supreme Law of the Land." Thus, any law of the United States made in pursuance of the Constitution (even a law nullifying the effect of the Constitution within a territory) is not void.

Note, of course, that just as states cannot remove themselves from the union, so too can territories not remove themselves from the jurisdiction of the United States. In this regard, the supremacy clause applies equally on the states and on the territories.

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There is a second argument against secession (that the Constitution is a compact between the states, and that no state may unilaterally breach it). This was the view advanced in Texas v. White.