The New Hampshire House of Representatives is voting today on CACR 32, a bill that would put the question of New Hampshire independence aka secession to a vote by the people of New Hampshire. Specifically, CACR 32 asks voters to vote yes or no to adding the following language to the New Hampshire Constitution:
[Art.] 7-a. [Independent Nation.] New Hampshire peaceably declares independence from the United States and immediately proceeds as a sovereign nation. All other references to the United States in this constitution, state statutes and regulations are nullified.
Based on testimony during the original committee hearing on CACR 32, there are some legislators and private residents who have questions about the (Federal) constitutionality of the Constitutional amendment that CACR 32 is putting to a vote. If this amendment would be unconstitutional, would it even be worth voting on?
I want to separate this into two separate questions:
- Would it be unconstitutional for NH to unilaterally secede from the United States of America?
- If secession is unconstitutional, is it worth voting on CACR 32 and later, the secession amendment?
To the first question, there has been only one legal case in the history of the United States of America to “settle” the question of the constitutionality of unilateral secession. According to the U.S. Supreme Court in Texas v. White, it is unconstitutional for a state to unilaterally secede from the United States of America. The Court had this to say on the subject:
The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form, and character, and sanction from the Articles of Confederation. By these the Union was solemnly declared to ‘be perpetual.’ And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained ‘to form a more perfect Union.’ It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?
But the perpetuity and indissolubility of the Union, by no means implies the loss of distinct and individual existence, or of the right of self-government by the States. Under the Articles of Confederation each State retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly delegated to the United States. Under the Constitution, though the powers of the States were much restricted, still, all powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively, or to the people. And we have already had occasion to remark at this term, that the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence,’ and that ‘without the States in union, there could be no such political body as the United States.’ Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.
When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.
Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union.
In resolving Texas v. White, the Court ended up ruling that Texas’ secession was unconstitutional. However, I find the argument of the Court in this matter to be weak: the entire basis of their argument is language in a legal document that the U.S. Constitution explicitly superseded. The Court says:
It was confirmed and strengthened by the necessities of war, and received definite form, and character, and sanction from the Articles of Confederation. By these the Union was solemnly declared to ‘be perpetual.’ And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained ‘to form a more perfect Union.’ It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?
To the Court, I would humbly and respectfully respond (were I the lawyer for the defense in this case – disclaimer, I am not a lawyer): who’s to say that, by calling the United States of America “a more perfect union”, the Founders intended to preserve the previous union’s perpetuity? What if, to the contrary, they intentionally left out the reference to perpetuity because they saw this as one of the flaws which they intended to correct in forming their “more perfect union”?
In any case, as the Court notes, in the U.S. Constitution, the Tenth Amendment says:
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.
And, as the Court again and elsewhere notes, the Constitution does not specify how States can leave the union, should the need or desire ever arise. The power to decide on this issue is neither “delegated to the United States by the Constitution, nor prohibited by it to the States”. Therefore, according to the Tenth Amendment, that power is “reserved to the States… or to the people”.
While the Supreme Court ruled unilateral secession unconstitutional in Texas v. White, I believe and argue here that they ruled incorrectly. It wouldn’t be the first time an earlier ruling by the Court was incorrect. In fact, the Supreme Court has overruled its prior rulings over 300 times. That’s not to say the Supreme Court will rule differently the next time the issue of secession is brought before them, if it ever is. I’m simply making the point that just because the Supreme Court has ruled one way on an issue in the past, it does not mean that that issue is settled and never to be debated again.
That brings me to our second question: accepting the current legal status quo of secession being unconstitutional, is it worth it for the legislature to vote for CACR 32 and, if approved, for the people of New Hampshire to vote for the secession amendment? To that, I answer yes, it is worth it. The reason is that, as stated above, just because the Supreme Court has ruled one way on an issue before does not mean they ruled correctly and that either new judges or new arguments couldn’t lead to the Court overruling the prior decision.
As I argue above, there are good reasons to believe that the Court was incorrect in ruling secession unconstitutional in Texas v. White. Therefore I think it is worth it for the legislature to give the people of New Hampshire the chance to consider the question of secession, and if the people agree with the arguments in favor of secession, for the people to vote to approve amending the New Hampshire Constitution and secede from the United States of America.
We the people of New Hampshire deserve to have our say on this issue, and, if it comes down to it, our day in court to make our case for independence.