Secession and the Law

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I am amazed at the absence of reasoning found in the responses of many lawyers, law professors, political philosophers, and media opiners on the topic of political secession. As with political discussions generally, debate on this issue originates from either an individualistic or collectivist perspective. Those whose basic premises are aligned with institutional interests, and who regard such entities as ends in themselves,  superior to the interests of individuals, tend to reject the rightful authority of men and women to alter or dismantle these institutions. If individuals are looked upon as being subservient to the interests of the state, those who share this opinion find it easy to treat secession as an illegal undertaking.

The Achilles heel in this line of thinking is found in its contradiction with the modern theoretical foundations of political systems. For centuries, the state acquired its “legitimacy” from a mythical “social contract” by which the governed consent to live in accordance with rules created by their alleged “agents.” That no evidence exists for any state having been brought into being by a contract among those to be ruled, has not diminished the use of the fiction. Political systems have been created and sustained by violence; by the conquest – not the consent – of the governed.

While I do not recognize a “social contract” as the origins of the state, I am quite willing to use the statists’ fabrication of such a transaction against them. By their nature, contracts are agreements voluntarily entered into by two or more persons to exchange claims to the ownership of property interests. Courts often refer to this voluntary nature as “mutual assent.” When one is forced, through threat of violence, to part with some property interest – as occurs when a street-mugger takes money from another at gun-point – a crime, not a contract, has taken place.

For purposes of addressing the statists’ arguments re secession, I will assume what has never in fact occurred, namely, that a state system has come into existence by every adult male and female freely agreeing, in advance of its creation, to be bound by a contract to subject themselves to prescribed rules and procedures. But if such an arrangement can be generated by voluntary agreement – by contract – why may it not also be modified or terminated by a subsequent agreement? If we can voluntarily create such a system, why may we not also voluntarily end it?

Implicit in the argument that it is illegal to dismantle a political structure allegedly created by some contract, is the unexplained assumption that the entity thus produced acquires rights that supersede the interests of the contracting parties. What is the reasoning that allows a tool to acquire a superiority of purpose and control over its creators? By what thinking does the Frankenstein monster become master over its producer?

Furthermore, had such a contract been entered into, who would be bound by it? If a majority of the population had consented to this arrangement, how could a minority – who did not agreed to be so bound – be obligated under a contract principle? And under what reasoning could any subsequent persons – including the children of those who had contracted as well as any subsequent residents – be bound?

Suppose that the Amalgamated Widget Company and I mutually agree to enter into a contract by which I will make my services available to the company in exchange for which they will pay me an agreed-upon salary. Suppose, further, that after ten years of working for Amalgamated, I decide to go to work for another firm. If Amalgamated wants me to stay, and cannot otherwise persuade me to do so, would it be “illegal” for me to work elsewhere? Would the company have a legal right to compel me to continue working for it? Such a conclusion is implicit in the statists’ rejection of the right to secede.

When questions of secession are approached not in terms of consistency with some abstract, philosophic principle, but as a matter of realpolitik, it becomes evident who the real parties in interest are. It is not the system, the tool that advances the claim of its primacy, but those who have taken control of the instrument – or who were responsible for its creation in the first place – in order to use it to control others to advance their private purposes. The “cui bono” principle applies in this setting as much as it does elsewhere in human behavior: “who benefits,” not only from the creation of systems by which we organize ourselves, but in interpreting the words we employ in defining the scope of what such systems may do.

When we attach ourselves so strongly to an abstraction that our minds have created, that we identify our very being with it; it becomes difficult for us to examine how such an attachment might contribute to the problems ensuing from our actions. To what extent, in other words, does our thinking contribute to the difficulties we experience in our institutionalized world?

Whether we are considering questions in the realm of religion, science, law, or other subjects, we encounter a truth that few people are willing to consider: no system of thought can be self-validating. As Gregory Bateson emphasized, intellectual respect for any belief system cannot depend upon internal assertions, but must be analyzed from outside the system; to be tested by a metasystem (which, in turn, must be validated by yet another metasystem, ad infinitum). Neither religion, nor science, nor any philosophic beliefs, nor legal maxims, can self-justify itself. One finds an illustration of this idea in the old story of the man who is explaining to his son the structure of the universe, whose vastness, he tells him, rests on the back of a turtle. “But upon what does this turtle rest?,” the boy asks. “Upon another turtle,” the father responds. “But, again, what supports this turtle?,” the bewildered lad inquires. “Look,” said he father, “it’s turtles all the way down!”

This endless regression is present in every system of thought, including the politico-legal system under question here. One of the first questions I ask my first-year students is this: “does the U.S. Constitution have any validity? And if so, why? Upon what basis does the government presume to rule your life?” This is one of those questions that few of us are ever encouraged to ask, leaving most of us to accept the political control of our lives with the same resignation we would the forces of gravity. Most of my students appear dumbfounded that such a question is even asked, particularly in a law school where the legitimacy of the Constitution is taken as a given. While the preamble presumes to speak for “We the People,” and Article V provides for the calling of a “Convention for proposing Amendments,” at no point is mention made of the right of people to secede, to withdraw from the system thus created.

By what metasystem might the question of the justifiability of the Constitution – and, with it, the entire political structure of the United States – be analyzed? If it cannot be validated by its own self-serving language, to what standard might we turn? One possibility is the Declaration of Independence, a document that created no political institution, but provided the criteria by which any such bodies might be judged. Philosophic or religious texts might also be useful, but given connections presumed to exist between these two instruments, I will use the Declaration for purposes of comparison.

The Declaration – heavily influenced by the thinking of such persons as John Locke – rationalizes the relations between individuals and political systems on a contract theory. Individuals being free, by nature, to protect their lives and property – but not to aggress or steal from others – may join together to form agencies to provide such protection – but with the same limitations vis-à-vis their neighbors. Should the political system, thus produced, exceed its permitted boundaries, it is the right of the people to “alter or abolish” it, and to create a new system to promote such legitimate ends. The Declaration clearly expresses the rights to “abolish” or to secede from a government that violates the individual rights that transcend the powers of the state.

One can read through the Constitution for words that provide such precision in thought, but will not find it. In the 1857 words of Lord Macaulay, “Your Constitution is all sail and no anchor,” one finds the essence of state power in America. One provision in the Constitution that contains faint echoes of the sentiments of the Declaration is the Ninth Amendment, which reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The logical implications of such words would lead thoughtful minds to acknowledge what the passage portends: the rights of human beings are of such infinite dimensions as to not be capable of verbalization. The Ninth Amendment was intended as a reminder of this fact.

If the spirit of the Declaration was thus to be incorporated into the Constitution by this Amendment, one would expect hundreds or even thousands of cases to have arisen under it, and to have affirmed an expansive defense of the individual when confronted by the state. Such has not been the case. Only a handful of cases has arisen under the Ninth Amendment. This has contributed to the twisting of the thinking that places individual liberty above all interests of the state; thus creating a default-mode mindset that whatever “rights” people enjoy come from, and are “given” by, the Constitution. As a result of such intellectual corruption, it is commonplace for people to conclude that, if a purported “right” cannot be found in the specific language (aka as “strict construction”) of the Constitution, it does not exist!

It is on the basis of such thinking that politicians, judges, and other statists assert that “secession” is “illegal.” If the Constitution does not specifically provide for this remedy, it does not exist; it is unlawful to pursue it. That such a proposition negates not only the Declaration of Independence, but the “social contract” theory upon which the state depends for bamboozling the public, is conveniently ignored by the statists. Many even go so far as to argue that the Civil War proved the illegality of secession, a conclusion that disregards the American colonials seceding from their then-present British government in a Revolutionary War aided by the ideas and spirit in the Declaration of Independence.

“Secession” is not a legal question, any more than it is a “scientific,” or “technological,” or “medical,” or even a “mathematics” issue. It is, rather, a proposition that cannot be intelligently explored, or acted upon, within the confines of the system from which secessionists seek to withdraw. It is, in other words, a philosophical question; one that requires recourse to deeply-held principled beliefs. Just as those nineteenth century libertarians who sought to abolish slavery had to rest their arguments on metasystems of thought that transcended constitutional, statutory, and other formal legal standards; the secession question cannot be answered by the political authorities who control, for their benefit, the coercive machinery that continues to grind down, loot, and destroy those who seek to liberate themselves from its inhumane practices.

From what extra-legal thinking can thoughtful minds find the inspiration and questioning with which to move outside the rigidly maintained boundaries of legalism? When we recall that the post-World War II Nuremberg defendants sought to excuse their murderous conduct with the plea that the acts they performed were not only allowed, but mandated by German law, we ought to be skeptical of allowing any system humans have created to be the judges of its own validity.

Whether mankind is to survive, or bring about its own extinction, will depend largely on the premises that underlie our social organizations. Will they exist as voluntary, cooperative systems through which individuals can mutually achieve their respective interests; or will they continue to function as herd-oriented collectives that allow the few to benefit at the expense of the many? The answers to such questions are to be found only within our individual thinking. Secession does not begin at the ballot box, or in courtrooms, or in signing petitions, but in the same realm where you lost your independence: within your mind, and your willingness to identify with conflict-ridden abstractions.

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