The Right of Secession

August 3, 2010

by Kevin Glick

“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…” -Declaration of Independence, July 4, 1776.

This opening clause of the Declaration of Independence, once an accepted statement of fact, has with the passage of time been morphed into more of a question. Do people have the right to “dissolve the political bands” which tie them to some particular government? If so, then wherefrom does this right arise and when does it take effect?

Throughout the history of the United States of America, as constituted under the Constitution of 1787, the legality or legitimacy of secession has been a fervently contested subject. In fact, the most brutal war in American history was waged on its own soil and between its own citizens over this very issue. Since that war’s bloody conclusion, or so it has been maintained by some, the question of the legality of secession by any state or group of states from the Union has been “fully and finally decided.”

However, adherents to the principle of secession have long, if silently, retained their deeply held convictions. In recent decades, as the power of the federal government has grown in authority and the states have incrementally come to assume an ever more subordinate, if not wholly dependent, role in the once dynamic intra-governmental balance of power between general and state polities, the question of secession’s legitimacy has been more widely and attentively considered than it ever has since the 1860s.

First, it is vital to refrain from putting too much weight, as is far too often a very enticing prospect when embarking on such an analysis, on precedence. This is because any tradition of secession or lack thereof in the American experience or that of the world in general, while pivotal perhaps in both the formulation and articulation of arguments both for and against secession as a matter of practicality or of principle, it remains that there can be either good or bad precedences in all forms of human endeavor. An examiner of this issue who wishes to consider the topic in the context of its own, self-contained legitimacy as it exists as a matter of principle is unconcerned with whether or not it has been done in the past or not, successfully or no, because no law or right ought to be considered as either sacrosanct or invalid, simply by virtue of its having been done or not done in the past. To sufficiently answer this question only a systematic, deductive, logical process can suffice, whereby the object of inquiry, secession, must stand on its own merits, unsupported by mere tradition and untainted by ignoble invocations.

No government has a right to govern without the consent of the governed. This is the basis of the Lockean “social contract” that forms the bedrock of modern liberal governments in the west. It holds that it is the natural right of all people everywhere to abolish their immediate government or sever any and all ties which bind their respective immediate governments to that of a foreign or general polity that persists in exercising its powers within the domain of a dissenting people.

It follows that if it is within the realm of justly held rights of individuals to extend their consent to a government, the inverse must also be true: It must be within an individual’s justly held rights to withhold or revoke his or her consent to that government. For if it is held that an individual may enter into contract without the requisite authority to exit that contract upon violation of its terms, or upon some other amiable grounds without himself violating the terms contained within its clauses, then what exists is no longer a mechanism for the mutual benefit of each party along consensual lines, but rather a mechanism of enslavement whereby one party legitimizes his exploitation of the other by recourse to the shackles of a document that he portrays to be as hallowed as it truly is hollow.

If secession exists as a principle of Natural Law, it follows that secession must necessarily exist as more than a mere legislative privilege bestowed upon citizens of a particular geographical region or demographic i.e. by an act of positive law. It must be a natural, inalienable human right derived from the rights of self-ownership, property, and the free exercise of both (The Lockean “Life, Liberty, and Property” or the more precisely articulated Rothbardian postulates of “(a) Self ownership and (b) the right to property derived from homesteading or voluntary exchange”). If secession exists as such, it ought to be recognized as a legitimate practice with solid, irrefutable foundations in natural law. If not, it must be recognized as a positive invention of mankind, employed for arbitrary purposes, and taken up by particular groups of people in particular times as a privilege of convenience. A mere tool for the exploitation of a sudden opportunity, but one that must be considered at worst as ethically illegitimate even if effective, and at best deriving its legitimacy only from some external factor or set of factors, but is never innately so.

To examine this, let us consider the validity of a business contract between two signatories in which Signatory 1 agrees to pledge his material support, we’ll say in the amount of $500, to a new business venture proposed by Signatory 2. Signatory 1 agrees to this on the assurance that certain conditions (A, B, and C) are met. Are we to then claim that upon the failure of Signatory 2 to uphold his end of the agreement by meeting conditions A, B, and C that the contract is still legally binding on Signatory 1? Of course not! If Signatory 1 is expected to uphold his end of the bargain when Signatory 2 fails to uphold his end, we may rationally arrive at the conclusion that Signatory 2 is benefiting at the expense of Signatory 1. A parasitical relationship between these two individuals will ensue if Signatory 1 is not absolved of his contractual obligations once that contract has been rendered void by non-adherence to its conditional terms by Signatory 2.

In actuality, since Signatory 1’s pledge of $500 dollars is conditional, that is to say that it is pledged just in the event that conditions A, B, and C are met, then it follows that if conditions A, B, and C are never met, then the contract was never initiated in the first place. Hence, Signatory 1 never had a material obligation of $500 to Signatory 2. If, on the other hand, conditions A, B, and C were for a time met and then at some point later on one or more of the conditions ceased to be upheld by Signatory 2, at least for the period of time agreed to in the contract, then the contract has been rendered void. In other words, the conditions required for the initiation and continuation of the contract are no longer in affect, thus the contract is ended. In this case, it is the party that breached the terms of the contract who has rendered it void, and it is the right of the other party, or parties as it may be, to pull out of the special relationship created by the terms of the said contract once the conditions for its operation have been violated. The same is true of the social contract.

Thus, it may be stated that if the conditions requisite for the social contract to take or remain in affect are not met initially, or alternatively are at some later point in time violated, then the contract is rendered null and void by these transgressions and the parties to that contract are thence, released of their obligations to one another. This is the case whereby “the political bands which have connected [one party] to another” are dissolved, and each party assumes its “separate and equal station to which the laws of Nature and of Nature’s God entitle them.”

Still, many contend that there is no such right of individuals, and thus of groups, to withdraw their consent for the government even when the terms of the social contract are violated. This presupposes that secession, if it ever existed as a legitimate device at all, existed by positive decree and not by natural law. However, such a claim also implicitly denies altogether the existence of a social contract rooted in natural law, for if one does not have the right to be absolved of their contractual obligations once the terms of the said contract are violated, then in substance no contract exists at all. Again, if one ever did, it existed as a mere privilege and was in no way derived from natural law as its philosophical and theoretical progenitors had originally professed. When an individual or group is lawfully required to perform certain obligations on behalf of, or remain stationary in their relationship to, another individual or group, and this without provision or precondition of any kind, then two rival classes emerge. That of the subjugator and that of the subjugated. And this relationship my accurately be labeled tyranny. For by what other name can a condition of coexistence be termed where one people is subject to the authority and rule of another without the right to escape?

It follows that if governments are instituted among men by means of a social contract to protect the rights of life, liberty, and property as is assumed in the construction of most western governments, how can any government justly assume the role of “protector” of any such rights on behalf of a people who view the very presence of that government, and any intervention into their lives by it, as an open aggression upon the very lives, liberties, and properties the unsanctioned government claims to be protecting? It may be contended that no such right exists to escape this unhappy relationship, but what exists instead is the right to alter this relationship between that class of man which considers itself to be the oppressed and that class of man which is perceived to be their oppressor, so that they may come to be ruled under a more favorable set conditions. However as a matter of practice, no such right exists at all in this situation when the mechanism of secession is removed from the arsenal of the oppressed. For if the change cannot be made within whatever mechanism is provided by the state (which is the apparatus through which the ruling class subjects the ruled to their authority), and no recourse is to be had by means of an escape, then they are even more thoroughly subjugated. This is the fallacy that exists with the argument that the right of secession is replaced in a representative or democratic system of government by the right to vote. (Would the conditions of African American slaves in America’s early history no longer have been considered morally reprehensible if they were able to elect their masters by popular vote? Would they cease to be slaves under such circumstances?)

As the argument goes, in a representative democracy, people are provided with an orderly and non-disruptive alternative to such a rash and dramatic act as secession. Individuals, it is contended, are given a seat at the table of government by means of an electoral process of representation, whereby a certain number of people is represented by one electorally designated individual, who then meets with the like-representatives of other sets of people and takes part in the legislative process. By such means as this, it is said, those individuals represented in government give their consent to the government in which their representatives sit. However, this argument does not stand up to scrutiny.

While such an arrangement as this is, without doubt, more preferable to most people than a system of government organized, say by a hereditary process of succession or by some feudal system of patronage, certainly, it is by no means perfect. In each election, some number of the general population must lose out against the will of the majority and are thereby obliged to submit to the laws created by a representative not of their own choosing. It can be argued that the mere participation of an individual or group of individuals is enough to demonstrate their consent to the entire system, regardless of the outcome of elections, but this is hardly deducible from the facts of the situation.

It only stands to reason that one would choose to participate in the political process of selecting representatives, even if one were a member of a minority population, rather than not. This by no means, however, should be taken as evidence of his or her consent of the system itself. For if he should abstain from voting, his legislative domination by the majority population is inevitable. If he should participate in the political process, a decision that by no means eliminates this threat of his subjugation by another group, all one can hope to accomplish is the lessening of the probability or degree of his or her subjection to the will of some group to which he or she does not belong.

This problem of representative democracy is particularly pernicious in electoral districts with near-ties in a given election. In fact, in most representative democracies, where the percentage of votes necessary for victory in an election or on passage of one act or another by referendum is not otherwise stipulated, the unrepresented segment of the community can range all the way up to 49.99%. (It should be kept in mind, also, that even this is only the case in the highly idealized instance of 100% voter turnout).

Is it right then, in such an instance, to allow the liberties, properties, and lives of the unrepresented minorities in such districts to persist in their sorry state? Isn’t it their right to be secure in their persons, properties, and liberties from threat of invasion by their own government or the greed and licentiousness of their more numerous and thereby more powerful neighbors? For in such a case, not only has the minority population the disadvantage of being outnumbered, but now the more populous group has been granted full access to all the coercive powers inherent in the apparatus of the state. An arrangement whereby, if the majority should have it in their minds to plunder or in some other way transgress against the minority population, the minority shall be compelled to contribute to their own exploitation by means of compulsory taxation under threat of imprisonment or other more onerous forms of coercion.

Let us, for the sake of argument, even consider the highly unlikely scenario that a given electoral district of some particular geographic section of society enjoys a happy state of 100% representation. That is, every citizen in a given district has pledged his or her full, voluntary consent to a single representative. Why should this group not be allowed to secede from the ranks of a more general and diversified polity? Say this idealized district be called District A, and they fall under a wider sovereignty made up of Districts B, C, D, and E. The only argument Districts B, C, D, and E can possibly put forth for their refusal to allow District A to part in peace assumes that these other districts somehow have a property right in District A. That is to say, that the peoples of Districts B, C, D, and E have some right to force their decisions onto the people of District A by means of their own elected representatives, thus presupposing a joint property right in District A. This, however, is a clear violation of the individual property rights of the people of District A, who have chosen by their own volition to exit their contractual relationship with the other Districts. Furthermore, such an argument can only be posited in flagrant contradiction to the whole principle behind representative government in the first place. Why should it be, for instance, that a representative of a certain set of people (B) should have the authority to make rules for another set of people (A) without the precondition of mutual consent? Isn’t this, in and of itself, a form of tyranny?

Next, to say that a war or any act of aggression has “fully and finally decided” a philosophical principle, or is even capable of such a feat, flies in the face of reason itself. The very assertion of such an argument is unconscionable, as to assume the truth of such an argument grants sanction to all manner of barbarity and repression throughout time and on every corner of the globe on the absurd and ghastly credo of “right through might.”

Furthermore, for the American government to espouse such nonsense is outright hypocrisy, considering that if such be true then the American Revolution must at once be recognized as an indefensible crime against a legitimate government as soon as one considers the success of Britain in putting down past uprisings across the length and breadth of their former empire, including many within the very colonies that asserted their right to dissolve their union with Great Britain in 1776. Did these British victories over early American separatists not fully and finally conclude the question of the right of any people to secede in the territories comprising the American colonies the way many now claim the Union victory over the Confederacy has done? If then, any should claim that the case of the United States of America is different owing to some agreement implicitly entered into by the act of ratification of the Constitution do they not, themselves, implicitly undermine the very legitimacy of the government itself by proclaiming that the Union is somehow paramount even to the very basis of that Union, itself? (The protection of life, liberty, and property).

In other words, if the government was installed for the purpose of protecting the lives, liberties, and properties of the people, yet the people are denied the right to the free exercise of their lives and properties by being subjected to an unwanted, monopolistic authority whose dominion is understood to encompass all people and the respective properties thereof (as they shall be forcibly prevented from attempting to form a more suitable and agreeable arrangement for themselves and their properties) in a given land area, then it seems the very posturing of such a claim (that there is no right of secession) as law becomes destructive of the rights supposedly protected by the government. Hence, a law against secession itself justifies the act by breaching the social contract which forms the very basis for the government which, regardless of whether so done by legislative enactment, executive action, or judicial decree, has grievously enacted the said law.

Kevin Glick studied Government & National Security for two years at Tiffin University and has now transferred to Ohio State University to pursue a BA in “Russian” and “World Economy and Business.” He is a staunch Libertarian and an ardent supporter of Austrian Economics and Libertarian ethics.

© 2010