Barack Obama, Michael Dorf, Politics, Sanford Levinson, SCOTUS, Supreme Court, Texas

Should I Stay Or Should I Go Now? Post-Election Secession Talk

In the wake of last week’s election, citizens from all 50 states have signed petitions calling for secession from the United States. Do they have any legal standing?

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In the wake of last week’s election, citizens from all 50 states have signed petitions calling for secession from the United States. These petitions have been filed with the White House’s “We the People” website, an initiative of the Obama administration to encourage public involvement in government. Once a petition reaches the threshold of 25,000 signatures within 30 days, the White House forwards the petition to its policy experts to draft a formal response.

It’s kind of ironic that these neo-secessionists submitted their formal demands through a government initiative specifically created by Barack Obama. It’s ironic because, while each state’s petition varies a bit in substance, the crux of every petition is “we don’t like that crazy Kenyan socialist president.”

Just to recap: Kenyan Head of Government. Not Kenyan Head of Government. Kenyan. Not Kenyan. Kenyon. Not Kenyan.

As of this hour, only a handful of states have reached the signature threshold to trigger an official White House response. Wanna take a guess which states are ready to bail? If you guessed “states that have past experience with secession,” you’d be right. Alabama, Florida, Georgia, Louisiana, North Carolina, Tennessee, and Texas have all finished their secession petitions.

Do these petitions signal a new round of secession?

(SPOILER ALERT: No)

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First of all, petitions to the White House from a vocal minority of citizens do not constitute a legally cognizable intention to secede. If some state legislatures and governors bow to these Internet bomb-throwers and pass some state legislation, then we’ve got something serious to discuss.

As a practical matter, the right of states to secede from the Union was settled in the matter of North v. South. However, the pertinent legal precedent is Texas v. White. I’m sure all of you remember that opinion by heart. But for those whose current practice is not long on 1860s jurisprudence, Texas v. White invalidated the sale of a number of bonds owned by Texas, but sold by the Confederate Texas government, and Chief Justice Chase took that opening to hold that states can’t unilaterally secede.

But in 2004, when the “Blue States” were mulling secession, Michael Dorf pointed out that Texas v. White may take a harsh stance on unilateral secession, but seems to make an exception for secession “through consent of the States.” What’s the mechanism for “consent of the states?” The Court doesn’t say, but there’s something out there — likely a constitutional amendment passed in Washington and ratified by 3/4 of the states.

This would be news to Abraham Lincoln. Invoking an analogy that would make Rick “Gay Marriage Leads to Bestiality” Santorum proud, Lincoln suggested that secession would lead to a sexual revolution:

[From the perspective of secessionists,] the Union, as a family relation, would not be anything like a regular marriage at all, but only as a sort of free love arrangement — to be maintained on what that sect calls passionate attraction.

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I haven’t seen it yet, but does Spielberg’s new movie dwell on Lincoln’s prudishness as a motivation for the Civil War?

Putting aside the legal issues, is there a smart political case for secession? These folks certainly think so, supporting the move to let the secession-supporting states go on the basis that most of the cultural, educational, and economic assets reside in the Obama-loving world. This analysis is interesting, but woefully overlooks the near monopoly the departed states would have over quality defensive linemen.

And this “Enlightened States of America” message overlooks the fact that secession is no longer a “Red State” phenomenon. Indeed, petitions are cropping up in Democratic strongholds like Oregon (a state that President Obama would have won under any voting rights scenario). Oregon’s petition reads:

The Federal Government has imposed policies on Oregon that are not in Oregon’s best intrests (sic), and we as citizens would respectively and peacably (sic) seperate (sic) ourselves from a tyranical (sic) Government who cares nothing about creating a sustainable future for our children.

So maybe not all the educational advantages rest in Blue States.

Joe Patrice is the author of Recess Appointment, a blog about political rhetoric, and he’ll be dropping in occasionally to write about the intersection of law and politics. To answer the question that you’re probably about to ask, he got his J.D. at NYU and spent ten years working at a Biglaw firm and a white-collar defense boutique. His favorite word is sesquipedalian.

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