Right to secede?

Talk of secession is not meant to be taken literally. Instead, those who raise the subject wish to underscore the degree to which cultural and political divisions track geographic ones. Appearances can be deceptive, however. Blue states contain many Republicans, just as red states contain many Democrats. Even the rhetorical point of contemporary secessionists is thus subject to question.

Before current noises, there were (less noisy) talk, leading to an interesting discussion of the legal nuances of the matter.  I don't recall talk of hundreds of thousands (really?) after Bush won in 2004, but then opposition to a bad President and being a crackpot, different things.  Still, signing an online petition with no chance of passing is realistically symbolic here.  Secession being "bad law and policy," notwithstanding.

Lyle Denniston in a recent essay on the subject noted:

In order to overrule Texas v. White by constitutional amendment, a secession proposal would have to modify the very Preamble of the Constitution, in which the nation’s people created “a more perfect Union,” and would have to wipe out the guarantee in Article IV of a “republican form of government” in each state. Those were the provisions of the Constitution on which the Supreme Court relied in 1869. And the nation’s people deeply revere those constitutional commitments.

A 1869 ruling is not necessarily binding for all time, but we can accept it as precedent. Texas v. White, 5-3, noted that "in all its provisions, looks to an indestructible Union, composed of indestructible States" and even though Texas didn't have representation in Congress etc., it was still a "state" during the Civil War and under military government.  The dissent argued it was not a "state" for purposes of the case, not answering the question of its presence in the union during the war.  

As the linked Dorf essay notes, states are not necessarily "indestructible" as seen by the presence of the states of Maine and West Virginia, both voluntary (the latter open to some question) offshoots of larger states, Massachusetts and Virginia.  As the ruling itself noted: "There was no place for reconsideration or revocation, except through revolution or through consent of the States." The amendment process provides a possible means to such agreement as might congressional agreement, which is after all how Texas entered the union. 

The concern here is an involuntary (that is, regarding the nation as a whole) secession of one or more states.  Revolution is one way to go here and we had our own -- the American "Revolution."  But, that seems so radical.  Thus, some try to find a means within the existing system to justify what some claim is not allowed.  Sometimes, the result is really a revolution of the current law (honestly, such was the case for various Warren Court rulings, including those alleging to follow precedent) though not admitted as such.  There is a lot of play in the joints.

The Civil War is seen by many as a test of history that secession is not legal under our constitutional system.  I question this, even if Lincoln (see also, the Dorf essay) is honored by many on this point.  Basically, history determined defending slavery (yeah, that's what it did) was not a valid reason, nor losing a fairly run national election. Election has consequences and all that.  To take the quote in mind, what the national government truly was not guaranteeing a republican form of government? Would remaining in a tyrannous system in effect be non-republican?

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

The Declaration of Independence appealed to natural law to defend the actions of the colonists, ending with an assertion of "power ... to do all other Acts and Things which Independent States may of right do."  Sounds to me like a legal argument of sorts -- they would be independent states pursuant to the laws of nations.  In effect, the document sets forth a contractual argument that once things get bad enough, the people have a right to rebel.  It is in effect a duty.  To me, this is a "legal" argument.

There were a few posts at Volokh Conspiracy (I linked to one) and the general sentiment seemed to be that there isn't a legal argument here, just a revolutionary one.  Eh.  We as a nation defended our revolution in our basic defense to said act at least partially in legal terms, a legal mindset being of special importance, not religion, conquest or nativity.  The Ninth Amendment cites unenumerated rights that arise in part from natural rights and the government in place has no legitimate power to deny them.  Said "power" is thus limited and the DOI [and the 10A] suggests there is retained a certain popular power of self-help once this is ignored too much, the 2A ensuring self-defense is not denied as well.

I realize there was talk of "perpetual union" and a "more perfect union," but is it really credible that some time in the 18th Century a group can bind future generations for all time on this matter?  Surely, if one state decides things are horrible, it is very questionable, and it will realistically be a judgment of history (and often military conflict) to determine if it is correct.  The Confederate states failed on that.  But, putting aside their grounds and how easy they deemed it for them to leave, their argument to me was not totally wrong.  If tyrants truly controlled the nation, totally denying people a republican form of government, perpetual injustice does not to me seem the only "legal" path.  A foundation is necessary there.

So, I think it possible that there is a legal right to secede if certain criteria are met and that it would not be extralegal revolution. This nation is not merely a matter of governmental might.  The sovereignty retained by the people could in a horrible situation be the sole legitimate power, requiring them to establish new governments, including new nations.  The need, however, are not to be "light and transient causes" such as the "wrong" person winning an election with a program deemed strongly unjust by some minority of the populace.  Be it the New Deal or Bush's program.  More like Nazi control.

If this sort of natural law (which need not be based on a deity) argument is not what "legal" means in these debates, okay, but if basic rights are in effect natural, the argument might go further than some might like.