I have to admit that in 2004 when George W. Bush was re-elected, I considered whether the Blue States should just secede and join Canada. I am not proud that I thought that. But I did.
As someone with access to legal decisions, I quickly looked to see if secession was just a bad idea or if it is flat out illegal/unconstitutional. That led me to stumble upon Texas v. White (1868) which has been cited in comments (and I am sure in other diaries) here. Basic analysis -- any attempt at secession is a complete nullity.
Then when secessionist Sarah Palin was nominated as a VP candidate, I thought, "Huh, maybe there is some case law recently that says secession is OK again?"
Well:
Actually, just the opposite. I learned that on November 17, 2006, the Alaska Supreme Court issued an opinion stating that a ballot initiative tending toward secession did not need to be placed on the ballot because secession was clearly unconstitutional. The Court addressed Rick Perry's brilliant Tenth Amendment analysis as follows:
Furthermore, the Supreme Court has interpreted the Tenth Amendment in a manner contrary to the interpretation Kohlhaas
urges. In considering whether states could impose term limits on
their federal legislators, the Court held that the Amendment
could only reserve that which existed before.23 Thus The states
can exercise no powers whatsoever, which exclusively spring out
of the existence of the national government . . . . No state can
say, that it has reserved, what it never possessed. 24 Like
representation in Congress, secession from the Union springs from
joinder to the Union. No state possessed a right to secede
before admission, and so no state would retain such a right under
the Tenth Amendment.
Kohlhaas also suggests that Texas v. White should not
be taken as black letter law since the decision is tainted by the
context, emotions, and political situation immediately following
the Civil War, and has not been cited except as dicta by modern
cases. This argument not only trivializes the impact of the
Civil War on the Nation but also ignores a plenitude of Supreme
Court cases holding as completely null the purported acts of
secession by other Confederate states.25 Unsurprisingly, the
Supreme Court has had little occasion since Reconstruction to
address the legality of secession.
In 2004 the Supreme Court observed that inclusion of the word indivisible in the Pledge of Allegiance was significant because the question whether a State could secede from the Union had been intensely debated and was unresolved prior to the Civil War.26
Even though secession is not explicitly addressed in
the United States or Alaska Constitutions, it is clearly
unconstitutional since opinions of the Supreme Court interpreting
the federal constitution including Texas v. White constitute
controlling authority.27
Kolhhaas v. State, 147 P.3d 714 (Alaska 2006)(citations omitted).
So less than 3 years ago, Rick Perry's pro-secession argument was actually briefed, argued and rejected in the highest court of one of our 50 states. Yet that doesn't keep him and his lot from re-making the argument.
PRACTICAL ANALYSIS
Let me break it down very simply. Rick,you are a member of the Republican Party. You like to call yourselves (when it suits you) "The Party of Lincoln." When states seceded from the union, what did Abraham Lincoln do? He went to war, declaring that the southern states had no right to do what they had done.
Tens of thousands of men died in the Civil War, Rick. On both sides. If secession is legal NOW (after the Civil War and the 13th, 14th and 15th Amendments and after 240 years of case law to the contrary), it surely was legal back in 1860, right?
So, if you are correct, and a state may legally secede from the Union, Abraham Lincoln is one of the greatest war criminals of all time, right?
That is the only logical conclusion -- he went after people who had a 100% legal right to do what they did, and tens of thousands of people were killed as a result.
And what of the actions taken in the seceding states by the federal government since 1861? Are they all null and void? Did these states never actually re-join the Union?
FINAL NOTE
I find it funny that the Pledge of Allegiance (which right wingers cling to as if it were an Addendum to The Holy Bible) screws them in this argument. What is that word there? No, right after "under God"??? Oh -- INDIVISIBLE!!!! Oops.