Revisionist apparel for the ill-informed.      

    It’s spring and the backlash is in full bloom.  Yesterday, April 14, marked the 145^th anniversary of the murder of President Lincoln.  How many remember that the Confederate surrender occurred just five days before, on April 9, 1865?

            Today, if you google the word “secession” in the Google News category you will find a listing of 1,066 current articles.  Most of them concern Virginia Governor Bob McDonnell’s bizarre Confederate History Month.  Most are voguing on the notion of a Civil War redo, or, rather, a new conflict over what tore the nation apart in the first place.

            USA Today ran an editorial entitled “Blind to history in Richmond” that—Duh!—the Civil War was about slavery.  But a reader responded as follows:

“Many historians would disagree with your statement that slavery was the central cause of the Civil War. They would point to the issue of states' rights as the central cause, and that issue is front and center today. It is time to put the ancient and divisive issue of slavery behind us.”

~Franz M. Suhadolnik; Sun Valley, Idaho

Actually, historians would not disregard slavery as the reason for the Civil War, unless maybe they were working for the RNC.  Other people apparently, being just a tad sloppy about their history, would put the divisive issue of slavery behind us as if it never happened.  But even that is not what strikes one most notably—in this moment of pageantry in Virginia and trial balloons for a mega-militia in Oklahoma.  What we are confronted with here is the issue of states rights.

            In this over-the-top moment of reactionary fervor, the notion of states rights has transcended its own history as the very notion of nationhood is questioned on the right.  States rights, the original backlash notion, the one that surfaces historically at every juncture when the rights of people of color advance, is today expressed as the “sovereignty of states.”  By the fantasy logic of rebellious impulse it is said that sovereign states may secede from the union.  How pervasive has this notion become in the viral backlash universe?

Toying with Secession in Minnesota

            In Minnesota, a Republican district nominating convention produced a platform resolution holding that states possess the right to secede from the union.  It failed by just two votes.  Here is how the action was reported in the Minneapolis Star Tribune:

Lori Sturdevant: Party of Lincoln flirts with a house-divided resolution

March 30, 2010

One marker of how deeply Tea Party thinking has steeped into the Minnesota Republican Party: The party's Second Congressional District convention in Red Wing on March 20 came within two votes of supporting a resolution supporting what state party chair Tony Sutton described as "the right of states to secede from the union."

The resolution was defeated, but only after Sutton, who was functioning as the convention's chair, reminded his fellow Republicans that opposition to secession by states was a founding Republican principle in the late 1850s.

The nation's bloodiest war was fought beginning in 1861 to keep the Union intact. Minnesota Gov. Alexander Ramsey was the first in the nation to promise troops to President Abraham Lincoln, the nation's first Republican president. The losses the First Minnesota regiment sustained at the Battle of Gettysburg in July 1863 were larger, in proportion to population, than any other state's.

It's stunning that the Republican Party in a state with that history would even flirt with a pro-secession resolution now.

But this is not Texas, or Oklahoma, this is Minnesota.  Nevertheless, here is how a delegate to the convention defended the action in a subsequent Letter to the Editor:

As one of the delegates to the Minnesota Republican Party's Second Congressional District convention who supported the resolution asserting the right of states to secede from the union, I feel compelled to respond ("Secession movement," Opinion Exchange, March 31).

Some may believe such a resolution is unpatriotic and un-American. On the contrary, it is my very love for America and our Constitution that moved me to speak in favor of this resolution.

The Constitution of the United States became the law of the land when it was voluntarily ratified by the sovereign member states as prescribed in Article VII. The states freely agree to be governed by the Constitution, which clearly spells out the powers delegated to the U.S. government, reserving all other powers to the states and to the people. If the union is insoluble, why would the federal government feel compelled to be constrained by the Constitution? What recourse would the states and the people have if the federal government acted outside of its constitutional authority? The right to secession serves as a reminder of the rule of law by which the states have agreed to be governed and provides a protective check to ensure fidelity to the Constitution.

The union is a free association, and although the secession of any member state is unlikely, the right to secede without being threatened with violence needs to be recognized.

Emily Conley, Belle Plaine, Minn.

            So here we have the “Article Seveners,” or just “Seveners,” joining the fray.  I thought I’d do a little fact checking, so I called Professor Fred Morrison of the University of Minnesota School of Law to get his take on Ms. Conley’s assertions.  Could it be that checks and balances are not contained within the balance of power provisions of the Constitution, but that the power of the federal government can only be reined in by threat of seccesion?

Ask the Experts

            “In 1861, a whole bunch of states tried that.  They did not succeed,” began Professor Morrison.  He was referring to the argument that the issue of the sovereignty of states was settled on the battlefield at Appomattox.

            Michael C. Dorf, professor of law at Cornell University, writing for FindLaw, concurs,“…there was considerable uncertainty about the legality of unilateral secession in the first seven decades following the Constitution's adoption. That uncertainty was put to rest not by the superior strength of the anti-secessionist argument, but by Lee's surrender to Grant at Appomattox.”

            Professor Morrison again:

“I think the Constitutional argument is in large part a political argument, and it is one that has been tried by radical forces in the past and failed.  There is no basis in the Constitution for states leaving the union. It is a union that was set up without any exit strategy, so I think the argument is entirely without merit.”

            Or, in Dorf’s words, “the door to the Union swings in but not out.”  Article IV of the Constitution allows new states to come in to the union, Article VII established how the original ratification would go.  It has come to mean, in Morrison’s words, that the states, “gave up part of their sovereignty.”  The original nine states surrendered a degree of sovereignty in ratifying the Constitution, and thereby abandonned the perhaps greater sovereignty they “enjoyed” under the Articles of Confederation.  For states that came after, any presumption of sovereignty is like unicorns, because they were organized—elevated to the status of candidates for statehood—for the sole purpose of joining the indissoluble union.

Is Texas Different?

            Some, like Texas governor Rick Perry, who got this whole déjà vu-all-over-again discussion going last year, think Texas is different.  You who thought secession was so 2009 may remember Perry saying, "Texas is a unique place. When we came into the union in 1845, one of the issues was that we would be able to leave if we decided to do that."

            We recall that Texas, uniquely, was a fledgling republic before it joined the union.  Let’s check in with Professor Dorf again:

“The military resolution of the secession question was then given legal force by the U.S. Supreme Court in the 1868 case of Texas v. White. The Court ruled there that even Texas--an independent republic before it joined the Union in 1845--had no right to secede. "The Constitution," the Court said, "in all its provisions, looks to an indestructible Union, composed of indestructible States."

            Morrison confirms the analysis, saying, “I think that there has been no credible argument for a secession in the whole history of the country.”

            Even in Texas, reason prevails in some circles, as within the confines of the Dallas Morning Herald, which wrote:

“A poll of 500 Texans released Friday [4/17/09] showed that 31 percent believe (incorrectly) the state retains the right to form an independent country. And another 18 percent said, given the opportunity, they would vote for Texas to secede.

The fact is, the treaty under which Texas joined the U.S. provides that it could be divided into five separate states. But it is not empowered to leave the union, a question that the Civil War seems to have settled once and for all.”

            The poll itself is enlightening.  If 31 percent of Texans believed last year that the state retains the right to form an independent country, then probably 31 percent believe the same today, especially given Texas history textbook standards.  And if 18 percent were ready to vote for secession last year, then probably 31 percent would do so today, taking Fox and the Tea Party into consideration. 

            But what about that right to dissolve itself into as many as five states?  Consider the implications of that for a moment.  And you thought the Senate was nasty now.  What if Texas did an inside deal, seceding from itself, and then reconstituted as four additional states, five in all, each with two Republican Senators. Well, okay, there’s Austin.  We’ll say they swing Democratic.  That makes six additional Republican Senators, of East, West, Innie, and Outie, Texas, all governed by mini-Rick Perrys, and each possessed of its own voluntary militia.  Too scary for words.

Is Magical Thinking Going Viral?           

            So why do we keep doing Groundhog Day all over again with secession?  I would argue for the effect of Magical Thinking.  Magical Thinking has taken over as the de facto mode of logic for the not-so-loyal opposition.  Magical Thinking, it turns out, grows like kudzu in climates characterized by empty wallets and no jobs.

            In Charleston, South Carolina, they are fighting over erecting a monument to the 170 South Carolinians who signed of the Ordinance of Secession in 1861.  They could be fighting about the best way to stimulate jobs, or how to finagle a loan out of a local bank to start a business, but the call of Dixie is just too hard to resist. "I think it’s part of the history of the state of South Carolina," Mayor Keith Summey said. "Whether you agree with the secession or not, the fact is it did occur and it did happen. We learn from our history."

            Or we don’t.

            To those who would draw from some kind of legal vaporware the sovereignty of states, Professor Morrison says, “They would be saying let’s go back to the way we lived in the 1780s.”  Here in Minnesota we could erect a customs house at Hudson, Wisconsin, and attempt to export our goods and services to Kansas City, according to Morrison. 

            I note here that we have been talking about unilateral secession.  Legal scholars, including Morrison and Dorf, agree that an agreed upon dissolution, one where the feds and the states get together and all say, this just isn’t working out, we want a divorce—that would be a more open-ended proposition.  I would put the likelihood of that at, oh, a trillion-to-one.

            Beyond such folly, we allow with our benign neglect some pretty foul political winds to blow these days. Forgetting that we are the people.  Forgetting that the Civil War had horrid, cataclysmic results.  (Grant lost 9,00 men, almost 20 percent of the number that died in Viet Nam, in a single morning.)  Forgetting that militias were designed to protect us from foreign powers—and laws were designed to protect our rights.  Forgetting that votes have meaning, and consequences. 

            There is much to forget, but more to remember, in that Lincoln spoke of “a more perfect union” in times that make our trials seem small, our arguments smaller.

* * *

NOTE:  Professor Michael C. Dorf’s FindLaw article, “Does the Constitution Permit the Blue States to Secede? “With Permission, Perhaps; Unilaterally, No,” written in 2004, was originally penned in response to liberal pundits who opined that, "blue states" ought to secede from the Union.”  I enjoyed that irony.  Context, however, is everything; and I would argue the tenor of the times is different today.