The Threat of Secession in Modern America

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By Michael Ange

Texas state representative Bryan Slaton introduced a bill, on the 187th anniversary of the fall of the Alamo, to allow Texans to vote on seceding from the United States. Yes, secession, as in the pre–Civil War abandonment. Slayton said in a tweet, “After decades of continuous abuse of our rights and liberties by the federal government, it is time to let the people of Texas make their voices heard.” In fact, history teaches us that there are a few ways that this movement may be successful even without secession.

First the history. Most Americans may believe that this war was already fought and even that secession is not a legal course forward, but a little research proves that the question is far more complicated than it first appears. One need look no farther than the aftermath of the Civil War to see the seeds of doubt.

As legal historian Cynthia Nicoletti of the UVA School of Law notes in her recent book, Secession on Trial: The Prosecution of Jefferson Davis, it was far from settled law even in 1865, on the heels of the Civil War. She concludes that none of the Confederate leadership was prosecuted for treason because it was a real possibility that their actions were not illegal. The nation and the administration simply could not risk a finding by the federal courts that the war they had just completed was illegal and that the thousands of dead had been killed by that illegal act.

Article 1, section 10 of the U.S. Constitution says nothing about a prohibition upon the states to secede, nor does Article 1, section 8, which enumerates the specific powers of the federal government. However the Tenth Amendment in the Bill of Rights does state, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This would, on its face, seem to include the right of secession as being reserved to the States or the people.