Marginalizing an extreme idea by putting it to a vote.
How do you restrain an increasingly credulous public from following its worst instincts over a cliff?
Candidates for high office (so far, mostly of the Tea Party-backed Republican persuasion) have openly expressed sympathy for ideas once considered too extreme to even discuss: repeal of at least part of the 14th Amendment (can the 13th, 15th, and 19th be far behind?); repeal of the 17th Amendment; armed rebellion by exercising "Second Amendment remedies"; secession; nullification under the "Tenther" view of the Tenth Amendment; repeal of Social Security, Medicare, civil-rights legislation, and minimum-wage laws. With those ideas finding supportive audiences, the need to answer that question has grown urgent.
One of those ideas — secession — could actually deal a significant blow to the extremists. By establishing a procedure, either by statute or through constitutional amendment, for allowing a State's citizens to vote on whether the State should secede from the United States of America and become a sovereign nation, Congress could force the radical factions to confront, without excuse, the existential consequences of their rhetoric. Moreover, this secession option (or, in my preferred alternative, a re-ratification obligation) would likely have the salutary effect of forcing everyone — not just the credulous — to ponder with previously unexplored seriousness what the United States of America really stands for, to decide whether we have evolved from colonies in which the original Tea Partiers rebelled against taxation without representation into a nation essentially demanding representation without taxation.
But, you ask, didn't the Civil War resolve this issue against secession?
Only sort of.
A few weeks after the presidential election in 2004, Professor Michael C. Dorf published a column on FindLaw.com under the provocative title "Does the Constitution Permit the Blue States to Secede? With Permission, Perhaps; Unilaterally, No." (This year, Professor Dorf, one of FindLaw.com's array of distinguished legal commentators, again touched on the secession issue in a FindLaw.com column titled "Nullification, Secession, and Guns Show Constitutional Meaning is Never Settled.") In the 2004 essay, Professor Dorf reiterated a couple of well-established points: that Lee's surrender at Appomattox resolved on the military front any uncertainty about the right of a State to secede unilaterally by force of arms, and that in Texas v. White, 74 U.S. (7 Wall.) 700 (1868), the Supreme Court of the United States held that a State does not have a legal right to secede unilaterally.
At the other end of the spectrum, as Professor Dorf points out, the Constitution at least implicitly prohibits the expulsion of a State, even with the unanimous consent of the other States. Article V provides "that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." In addition, Article 4, Section 3 provides that "no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress."
In between those extremes, however, lies the opportunity to test — and marginalize — secessionist (and right-wing libertarian) sentiment. Although Professor Dorf notes conceptual difficulties in allowing States to secede through mutual agreement, those difficulties seem to arise from an assumption that Congress would need to approve each specific petition for secession, much as Congress must approve an individual bill before the President can sign it into law.
Suppose, however, that "mutual agreement" arose from a congressionally approved referendum procedure that permitted a State, via that procedure, to decide whether to secede. In effect, the referendum procedure would operate as continuing "mutual agreement" between (on one hand) Congress and the President and (on the other hand) any State contemplating secession: if a State follows the approved referendum procedure and votes for secession, the State can — in fact, must — leave the Union.
For example, the procedure could provide that a prescribed number of petitioners file a declaration with both the State's governor and a designated office in Congress. The petitioners would then have a certain period within which to gather on petitions a specified number of voters' signatures — say, a percentage of the number of ballots cast in that State in the most recent presidential election — and file the petitions for validation by a designated State agency. If the agency confirmed that the petitioners had submitted a sufficient number of valid signatures, the State would hold the referendum within a specified period — perhaps during the next statewide election or during the next federal election. If a majority failed to support remaining part of the Union, secession would take effect by a federally specified deadline after the referendum.
A secession option would have several benefits, including rapidly marginalizing secession proponents; a secession vote, with real consequences arising from a pro-secession outcome, would almost certainly terrify most Americans and lead to a strong anti-secession vote. Also, the referendum would finally let the Southern states (where secession sentiment seems strongest, or at least most ardent, and the Civil War never seems in remission) decide whether, at this point, they still want to sever themselves from the United States. Finally, if you subscribe to the principle of self-determination of defined but alienated groups within a larger society, the secession option effects that principle: if the citizens of a State feel so estranged from the United States of America, perhaps they should dissolve their bonds with the Union, as the colonists did with Great Britain, and simultaneously free the rest of the country from grievances that invite continuing (and perhaps escalating) conflict, from attitudes that encourage substituting bullets for ballots.
Of course, if Congress approved a procedure of this sort (all but certainly the longest of long shots), Congress could also rescind it: what Congress creates, Congress can destroy. A constitutional amendment requiring a re-ratification vote of the Constitution during each presidential election would embed the procedure more permanently than would comparable legislation. Beyond providing a vent for secessionist impulses, a mandatory re-ratification procedure would force a quadrennial political debate — by voters as well as candidates — about the current meaning and purpose of the United States. Moreover, by dividing the States into five classes (analogous to the procedure required in Article I, Section 3 of the Constitution for dividing Senators into classes) and requiring each class to vote every fifth presidential election, the rotating re-ratification vote would compel the citizens of each State to decide, once every twenty years, how strongly or weakly they feel attached to the United States.
Perhaps the Tea Partiers and radical Republican politicians really do want rebellion against and separation from the United States of America. If so, let's give them — and the rest of us — recurring opportunities to declare in the voting booth on which side of that line each citizen stands.