Avoiding Secession Through an Amendments Convention

September 26, 2021 Updated: October 18, 2021

Commentary

The national divide has gotten so deep that even the brilliant Roger Simon has broached the subject of succession: “I never thought I’d be writing about secession or anything close. Not in a million years.”

After reciting his love of country, Simon continued:

“But the times being what they are and the man occupying the presidency being who he is, not to mention those surrounding him being who they are, plus the issues that divide us … I feel compelled to discuss secession or division as if they were a real possibility worth considering.”

Simon has picked up on the secession talk I’ve heard bubbling through the grassroots.

“I know I’m not alone in thinking about what was once unthinkable,” he wrote. “Indeed, from what I’ve heard, even in the halls of Congress there are those so concerned with the inability of the red and blue to speak or reason together, who see a gulf between both sides so wide it will never be bridged, that some of our politicians are beginning to whisper about secession or the like as well.”

Secession movements are responses to national policies imposed over strong objections from particular regions of the country. The first major secession movement arose in the New England states during the War of 1812. The federal government, then dominated by officials from other states, had declared war on Great Britain. The war destroyed the New England fishing and commercial economy.

The second major secession movement was, of course, the exodus of Southern states in 1860 and 1861. The South resented federal tariffs and feared that the central government would act against slavery. The immediate trigger was the election of a president whose party had pledged to end slavery in the federal territories. If that happened, the slave states would be hemmed in and their “peculiar institution” potentially doomed to extinction.

As with previous secession movements, modern secession sentiment derives from regional dissatisfaction with national policy. However, the current sentiment differs from previous movements in at least four ways:

First, in previous movements, the national policies causing dissatisfaction were few in number. Today there’s much more to complain about: The central government has been forcing all states and citizens (except those with political pull) to bend their necks to arbitrary and stupid diktats governing health care, immigration, education, marriage, social policy, land use, and many other subjects.

Second, during the War of 1812, New England contained only five of the 18 states (Maine was still part of Massachusetts). In 1860–61, only 11 of 34 states—containing just 27 percent of the population—seceded.

Modern dissatisfaction is more geographically widespread. In recent years, a majority of states have sued to upend Obamacare, vaccination mandates, and other federal policies. In 2020, half of the states voted for Donald Trump. Sixty percent of them have Republican legislatures and a majority have Republican governors.

Third, it was awkward to make a moral case for New England commerce and particularly difficult to do so for slavery—although some people tried. By contrast, many of the policies now issuing from Washington are deeply offensive to traditional morality.

Fourth, the centralized policies of 1814 and 1861, wise or not, were constitutionally legitimate. The Constitution grants Congress the power to declare war and (despite the absurd ruling in the Dred Scott case) the power to govern federal territories. By contrast, many current national policies are, under any honest reading of the Constitution, far outside federal authority. Some of them, such as the Biden administration’s failure to enforce immigration statutes, actually defy federal law.

One might argue that these four differences make secession more practical than in 1814 or 1861. But a better way of looking at it is that those differences give the dissenting states certain advantages, and more viable options, than merely submitting or seceding. The best option—and the key to saving the country—is decentralization.

The Founders understood the advantages of decentralization. That’s why they created a federal, rather than a unitary, government. History had shown that free republics endure only if they govern small territories. Republics occupying large areas degenerated into despotism, because holding together regions with disparate interests and cultures requires a strong man or military oligarchy. An obvious example was the Roman Republic, which couldn’t adapt to territorial expansion and therefore degenerated into autocracy. Another example is Russia today.

John Dickinson in his “Fabius” essays and Alexander Hamilton in “Federalist No. 9″ noted that the Constitution met that challenge by creating a decentralized system. The overwhelming majority of policy issues would be resolved at the state or local level; divisive national controversies would be limited to tariffs, foreign affairs, the post office, and a few other subjects.

We’ve ignored this wisdom and the Constitution that enshrined it. Federal functionaries and their media and special interest allies have nationalized every issue. That’s the leading cause of our bitter divisions: We fight over everything because the feds are trying to control everything.

How do we restore decentralization? The Constitution gives us a tool for that purpose. Article V of the Constitution permits two-thirds (34) of the state legislatures to force Congress to call a convention for proposing amendments. At a convention for proposing amendments, each state has an equal voice: It’s one species in a larger class of assemblies known as the “conventions of states.” State lawmakers can direct this assembly to propose amendments limiting federal power, after which the states then decide whether to ratify them.

This is the procedure that the Founders recommended for correcting central overreach. George Mason, a Constitutional Convention delegate from Virginia, insisted on it as a remedy in case the central government became “oppressive.” Samuel Rose, a leading New York ratifier, noted that the procedure “prescribed for the states a mode of restraining the powers of government, if upon trial it should be found that they had given too much.” Tench Coxe, the author of some of the most widely read essays in support of the Constitution, wrote:

“The sovereign power of altering and amending the constitution … is vested in the several legislatures and [ratifying] conventions of the states, chosen by the people respectively within them. The foederal government cannot alter the constitution, the people at large by their own agency cannot alter the constitution, but the representative bodies of the states, that is their legislatures and conventions, only can execute these acts of sovereign power. …

“As the foederal legislature cannot effect dangerous alterations which they might desire, so they cannot prevent such wholesome alterations and amendments as are now desired, or which experience may hereafter suggest. … If two thirds of those legislatures require it, Congress must call a general convention, even though they dislike the proposed amendments, and if three fourths of the state legislatures or conventions approve such proposed amendments, they become an actual and binding part of the constitution, without any possible interference of Congress.”

The number of states with Republican legislatures (governors have no role in the process) already approaches the necessary two-thirds. Because the Biden administration’s power lust is matched only by its incompetence, after the 2022 election, the tally of Republican legislatures may soon be higher. Surely a convention dominated by conservative state legislatures can draft amendments popular enough to be ratified by 38 states. There are, after all, sensible liberals appalled by federal excess and the danger of national breakup.

We have everything to gain from a convention of states and nothing to lose (claims that an amendments convention is uncontrollable or could be controlled by Congress are myths without historical or legal basis). Accordingly, we have a moral and legal obligation to employ that constitutional tool before splitting up the country.

Robert G. Natelson, a former constitutional law professor, is senior fellow in constitutional jurisprudence at the Independence Institute in Denver, and a senior adviser to the Convention of States movement. His research articles on the Constitution’s meaning have been cited repeatedly by justices and parties in the Supreme Court. He is the author of “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2015).

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

Rob Natelson
Robert G. Natelson, a former constitutional law professor, is senior fellow in constitutional jurisprudence at the Independence Institute in Denver.