A war was fought over it. In early
2013, the White House made it explicit in replying to a petition. Yet still
there was a sense among at least some Texans that something was amiss.
Following U.S. President Obama’s re-election in 2012, citizens of
Texas, Louisiana, Alabama, and five other member-states in the U.S.
signed petitions for the White House to allow their respective states to secede
from the Union. At the time, few people other than the secessionists themselves
took the petitions seriously. Yet the underlying contending principles deserve
more serious reflection even if no "exit" is anticipated. Most
importantly, the matter concerns how and whether the rights of member-states
(and majorities of the people, therein) are to be circumscribed in a federal
union that leaves said republics semi-sovereign and with residual
sovereignty.
In his reply to the petitions, Jon
Carson, director of the White House Office of Public Engagement at the time,
argued that the American Founders did not provide a right for states to “walk
away” from the Union because it is perpetual. He cited Texas v. White,
a U.S. Supreme Court case in 1869 that ruled that individual states do not have
a right to secede. The republics constituting the polities within the Union
have residual sovereignty yet not the most basic authority, or right,
to secede. As a republic
is a polity whose political system is that of
representative democracy, the right denied would be that of the majority
of the people. Hence, Texas v. White can be interpreted as
infringing on democratic principles.
For his part, the communications director for the Texas
Nationalist Movement, Jeff Sadighi, pointed to the section of the Texas
constitution that asserts Texans have the right “to alter, reform or abolish
their government in such a manner as they may think expedient.”[1] To alter or
reform the government of Texas refers to the governmental system there
presumably by constitutional amendment. Although it is possible that an
amendment could allow for a "Texit" from the U.S., typically
amendments pertain to a government itself as a political system rather than to
relationships with other political entities, even if governmental sovereignty
is split. To abolish a standing government is to do just that. Since to avoid a
brutish state-of-nature some governance is required, presumably the
constitution also gives a right to create a new government. The question here
is whether such a government would be bound to the U.S. even if
secessionability were part of a new government of Texas.
For an answer, we must locate the term "perpetual union"
at the federal level, for the Texas v. White decision relies on the federal insistence
that the Union is perpetual--meaning that it cannot be abolished and that
member-states cannot secede, or "exit" as per twenty-first century
parlance. In 1777, The Articles of Confederation and Perpetual Union were
proposed to the 13 sovereign member-states. Ratification concluded in
1781. The treat did not establish a federal government; there was only the
Continental Congress wherein delegates from the republics met. Article XIII
states that "the Union shall be perpetual." In Texas v.
White, the U.S. Supreme Court took this to mean that a member-state
could not leave the union. I submit that this inference is fallacious. For the
Union itself
to be perpetual does not require that no member-state leave the
Union; it would not be abolished were a state to "exit." Even had the
member-states in the Confederate States of America had succeeded in exiting in
the 1860s, the U.S.A. could have continued to exist, minus those states. In
short, perpetual
does not imply that something remains as it is; rather, perpetual
means that the thing itself cannot be abolished.
The most blatant error in Texas v. White is that the Court assumed that The
Articles of Confederation were still valid. In 1789, that treaty was replaced
by the U.S. Constitution, and no reference to perpetual is in that ongoing document!
In contrast, the argument against the Texas v. White decision
rests on constitutional
language. In particular, the 10th Amendment explicitly
refers to the residual
(i.e., unspecified, and thus unlimited) powers being held by the states and
the people, rather than to the federal government, which includes the U.S.
Supreme Court, the Congress, and the U.S .President. The
"people" refers both to roles as citizens of the respective states
and U.S. citizens. The former implies that the majority of a state's electorate
have just as much residual sovereignty as does a majority of the U.S.
electorate; the notion of popular sovereignty as the ground of a representative
democracy gives a majority foundational authority. So it makes sense that residual
sovereignty ultimately belongs to majorities of electorates. In federalism,
each citizen is one of two polities--her member-state and her federal
government. That the amendment assigns residual sovereignty to the states along
with the people implies that the latter have residual sovereignty especially in
so far as a person is a citizen of a state. Moreover, the residual sovereignty of a
member-state and the people more than outweigh the limited, or enumerated,
authority of the U.S. Government, and especially the historical
treaty that since 1789 has not been in effect.
The U.S. Supreme Court, a branch of the federal government,
reached its Texas
v. White decision in spite of the fact that it is so obviously
without an ongoing constitutional basis; the Court went instead
merely on the stretched assumption that what had been stated in the
Articles is somehow to be implied in the U.S. Constitution, which replaced the
Articles. The explanation may lie in the Court being caught in an institutional
conflict of interest. In short, the head of a branch (or arm, as per The New
York Times' terminology on the E.U., which in turn seeks to distinguish itself
from the U.S. in part by having arms rather than branches) has an institutional
interest in protecting the government or level of government that has the
branch or arm over being a level (i.e., unbiased, and thus
fair) adjudicator of constitutional conflicts between a member-state (or
even the member-states) and the government in which the Court is a part.
Americans, and even the world, miss this conflict of interest whose support is in
the U.S. Constitution.
It may be that the E.U.'s constitutional language allowing states
to secede reflects a more balanced federal system with respect to the states
and the Union. In fact, the E.U.'s Supreme Court, the ECJ, has cleverly evaded
the conflict of interest that plagues its counterpart in the U.S. by having a
given state nominate a state jurist to be confirmed by all of the states. With
such a state-based process, the inherent bias of the European Court of Justice toward
the E.U. level is institutionally
(here, in terms of process) countered such that the state and
federal levels have weight. That the U.S. has not learned this point from
looking at the ECJ is troubling, as this implies that the U.S. Constitution may
not be flexible enough even to be improved.
For more on such conflicts of interest, see Institutional Conflicts of Interest, available at Amazon. For more comparisons of the E.U. and U.S., see Essays on Two Federal Empires, also available at Amazon.
1. Manny Fernandez, “White House Rejects Petitions to Secede, but Texans Fight On,” The New York Times, January 16, 2013.
