If present day petitions circulating around the United States seeking the right to secede were simply manifestations of “Romantic Nationalism” [“RN” for brevity], they’d be bad enough. In point of fact they go beyond traditional notions of RN and are based upon popular mythology with no basis in history, constitutional law, or international law. For a traditional notion of RN, we can look to Johann Gottlieb Fichte’s (an acolyte of Immanuel Kant) “To the German Nation” in 1806, which exhorted German resistance to Napoleon Bonaparte:
Those who speak the same language are joined to each other by a multitude of invisible bonds by nature herself, long before any human art begins; they understand each other and have the power of continuing to make themselves understood more and more clearly; they belong together and are by nature one and an inseparable whole. …Only when each people, left to itself, develops and forms itself in accordance with its own peculiar quality, and only when in every people each individual develops himself in accordance with that common quality, as well as in accordance with his own peculiar quality—then, and then only, does the manifestation of divinity appear in its true mirror as it ought to be.
The Terminology of Diplomatic Recognition
Before discussing the legal and historical assertions being bandied about by advocates of secession, the best argument is seemingly ‘we used to be independent and joined the United States voluntarily so we can get out if we want to.’ I realize that I can be accused of making a “straw man” (or “straw person”) argument as defined in logic, but I think my characterization of this argument for secession is fair from what I’ve read going around the internet. There are five (5) situations where that argument has a minimally plausible basis. Keep in mind that to be a “valid” argument, the conclusion must logically follow from the premises, while to be “sound” the argument must be “valid” and the premises must also be true. The five (5) historical situations where at least there is sort of a basis for claiming pre-existing independence include the “Green Mountain Republic” (Vermont), the Republic of West Florida (part of Louisiana), the so-called California Republic (or Bear Flag Republic), the Republic of Hawaii, and the Republic of Texas.
Before getting to the history though, it’s important to understand the various forms of diplomatic recognition that are accorded to nation states and to movements of people that control territory that do not necessarily constitute a nation state. Some of the important terms are De Facto, De Jure, Belligerency, Occupation, Annexation, and Cession.
De Facto diplomatic recognition is accorded to a government which is in actual control of a geographical area. A perfect modern day example is Taiwan, or the Republic of China as it calls itself. In the theories of both the Chinese Peoples Republic (the mainland) and that of Taiwan, each government is the “legitimate” or De Jure government of both the mainland and Taiwan. Most governments around the world recognize the mainland government as being the De Jure government but recognize the reality that the De Facto government in Taiwan is the government that calls itself the Republic of China.
Belligerency is a form of diplomatic recognition accorded when control of a geographical area — usually in a state of rebellion against a sovereign government — is accorded to a military force which may also be accompanied by a civilian form of government. This is precisely the kind of diplomatic recognition that was accorded to the Confederate States of America (CSA) by Great Britain, France, Brazil (which was sympathetic as a fellow government that still allowed legal slavery) and some other European nations, but no nation appointed formal diplomatic representatives.
Occupation is the formal recognition of a status, usually presumed to be temporary, when military forces of a nation state takes control of the geographical area of another. This is the status that most nations in the world accord to Palestine, as an area occupied by Israel. Annexation occurs when a part of one nation state is determined to have been legally incorporated into a nation state which has Occupied that territory. Israel contends that it has annexed East Jerusalem and the Golan Heights. The Golan Heights Law of 1981 passed by the Israeli Knesset replaced military administration in the area with civil administration, but no other nation recognizes the legitimacy of the annexation and the United Nations officially considers it a violation of the United Nations Charter and the Geneva Convention. Another example of Annexation was the United States seizure and incorporation of the Northern half of Mexico by the Treaty of Guadalupe Hidalgo. Because Mexico never actually received everything it was supposed to get under the Treaty, such as respect for the rights of Mexicans on the United States side of the border that was established, Mexican textbooks described the USA “Southwest” as Mexican territory temporarily occupied by the USA (EEUU) until around 1946. Cession of Mexico’s North to the United States of America is technically what happened as a result of the Treaty of Guadalupe Hidalgo, albeit that there was a gun (an Army of Occupation in Mexico City) to Mexico’s head and it took the apparent bribery of at least two Mexican Senators by the United States to get the whole matter ratified after it had initially been voted down.
California–26 Days of Rebellion in a Single County
There is a distinct difference between a “revolution” and a “rebellion.” When a “rebellion” succeeds, it becomes a “revolution.” If it loses, it remains in history a rebellion.
The entire so-called California Republic consisted of the raising of the “Bear Flag” in the town square of the City of Sonoma, the arrest and incarceration of some Mexican officials, and the formal dissolution of the so-called Republic 26 days later when those who’d declared its existence found out that the United States was at war with Mexico and that the US was going to annex California anyway. It was never recognized by the United States, Mexico or any other nation, never controlled any significant territory even within California, and never set up any formal government.
The main accomplishment of the California Republic was the commission of an atrocity and a war crime against General Mariano Guadalupe who peacefully surrendered to the Bear Flaggers by inviting them into his home and giving them food and drink, just to be rewarded by being incarcerated over a swamp at Sutter’s Fort. He contracted malaria as a result. Of his experiences he later wrote:
If the men who hoisted the ‘Bear Flag‘ had raised the flag that Washington sanctified by his abnegation and patriotism, there would have been no war on the Sonoma frontier, for all our minds were prepared to give a brotherly embrace to the sons of the Great Republic, whose enterprising spirit had filled us with admiration. Ill-advisedly, however, as some say, or dominated by a desire to rule without let or hindrance, as others say, they placed themselves under the shelter of a flag that pictured a bear, an animal that we took as the emblem of rapine and force. This mistake was the cause of all the trouble, for when the Californians saw parties of men running over their plains and forests under the ‘Bear Flag,’ they thought that they were dealing with robbers and took the steps they thought most effective for the protection of their lives and property.
Green Mountain Republic
Vermont existed in the context of a pre-revolutionary war dispute between New Hampshire and New York. It had a functioning government and had declared independence from Great Britain in 1777. However, before the Treaty of Paris was signed between the United States and Great Britain, military hero Ethan Allen — who had also represented Vermont in negotiations to join the Articles of Confederation — entered into negotiations with the British authorities of Quebec in hopes of bringing Vermont back into the British Empire as a separate state or province of Canada. When the negotiations with the British were publicly exposed, they were dropped.
The existence of the Green Mountain Republic was predicated upon resolving the conflicting claims of New Hampshire and New York over its territory and its desire to become part of the United States was never really at issue. Eventually Vermont was admitted as the 14th state in a compromise wherein Kentucky was admitted to the union to keep the balance between free and slave states.
Republic of Hawaii
The annexation of the Republic of Hawaii was as scurrilous as the annexation of Northern Mexico. United States troops supported the overthrow of the monarchy–which had a functioning legislature–and when this element was uncovered by the Blount Report, commissioned by Democratic President Grover Cleveland (who’d replaced Republican Benjamin Harrison who’d been up to his eyeballs in supporting the coup d’etat which overthrew the monarchy led by the descendants of American missionaries) the United States backed off on the annexation requested by the government of Sanford Ballard Dole.
In 1898, Republican President William McKinley signed a treaty of annexation negotiated with Hawaiian President Dole, but it failed to receive Senate ratification after 38,000 Hawaiians signed a petition against annexation in support of restoration of the constitutional monarchy the Americans had overthrown. Eventually the joint congressional “Newlands Resolution” unilaterally annexed Hawaii over the objections of the Hawaiian population.
With this history, Hawaii has the best claim of legitimacy to secede since there was never anything consensual about the annexation and its legitimacy was even rejected by a President and couldn’t pass muster in the Senate to annex by treaty.
Republic of West Florida
Wikipedia explains that:
The Republic of West Florida was a short-lived republic in the region of West Florida in 1810. The United States and Spain held long, inconclusive negotiations on the status of West Florida. In the meantime, American settlers established a foothold in the area and resisted Spanish control. British settlers, who had remained, also resented Spanish rule, leading to a rebellion in 1810 and the establishment for exactly ninety days of the independent Republic of West Florida.
On October 27, 1810 President James Madison simply issued a decree, without any congressional authority (other than to claim that the area was part of the Louisiana Purchase from France) purporting to annex the territory. Its President and legislature wanted to resist and to negotiate terms of annexation into the United States but eventually backed down.
Republic of Texas
The key economic reason for the revolt of Texas against Mexico was because Mexico had abolished slavery and was intent upon suppressing the United States Southern illegal immigrants to its territory that had brought their slaves with them and were intent on keeping them in bondage. After revolting against Mexico, Texas established a government which was recognized by France, Belgium, the Netherlands, and the Republic of Yucatan, which like Texas had revolted against Mexico. Markedly, neither Britain nor Mexico ever recognized the legitimacy of the Texas Republic.
The first treaty negotiated between Texas and the United States for annexation was defeated in the Senate by a vote of 16-35 (not even a majority let alone the required 2/3 vote for treaty ratification) on June 8, 1844. Similar to what would later happen with Hawaii, Texas had to be annexed by a Congressional joint resolution, which provided that if it later saw fit, Texas could be divided up into as many as four (4) separate states:
Resolved by the Senate and House of Representatives of the United States in Congress assembled, That Congress doth consent the territory properly included within, and rightfully belonging to the Republic of Texas, may be erected into a new State, to be called the State of Texas, with a republican form of government, to be adopted by the people of said republic, by deputies in convention assembled, with the consent of the existing government, in order that the same may be admitted as one of the States of this Union.
2. And be it further resolved, That the foregoing consent of Congress is given upon the following conditions, and with the following guarantees, to wit:
First, Said State to be formed, subject to the adjustment by this government of all questions of boundary that may arise with other governments; and the constitution therof, with the proper evidence of its adoption by the people of said Republic of Texas, shall be transmitted to the President of the United States, to be laid before Congress for its final action, on or before the first day of January, one thousand eight hundred and forty-six.
Second, Said State, when admitted into the Union, after ceding to the United States, all public edifices, fortifications, barracks, ports and harbors, navy and navy-yards, docks, magazines, arms, armaments, and all other property and means pertaining to the public defence belonging to the said Republic of Texas, shall retain all the public funds, debts, taxes, and dues of every kind, which may belong to or be due and owning to said Republic of Texas; and shall also retain all the vacant and unappropriated lands lying within its limits, to be applied to the payment of the debts and liabilities of said Republic of Texas, and the residue of said lands, after discharging said debts and liabilities, to be disposed of as State may direct; but in no event are said debts and liabilities to become a charge upon the Government of the United States.
Third, New States, of convenient size, not exceeding four in number, in addition to said State of Texas, and having sufficient population, may hereafter, by the consent of the said State, be formed out of the territory thereof, which shall be entitled to admission under the provisions of the federal constitution. And as such States as may be formed out of that portion of said territory lying south of thirty-six degrees thirty minutes north latitude, commonly known as the Missouri compromise line, shall be admitted to the Union with or without slavery, as the people of each State asking permission may desire. And in such State or States as shall be formed north of said Missouri compromise line, slavery, or involuntary servitude, (except for crime) shall be prohibited.
3. And be it further resolved, That if the President of the United States shall in his judgement and discretion deem it most advisable, instead of proceeding to submit the foregoing resolution of the Republic of Texas, as an overture on the part of the United States for admission, to negotiate with the Republic; then,
Be it Resolved, That a State, to be formed out of the present Republic of Texas, with suitable extant and boundaries, and with two representatives in Congress, until the next appointment of representation, shall be admitted into the Union, by virtue of this act, on an equal footing with the existing States as soon as the terms and conditions of such admission, and the cession of the remaining Texian territory to the United States be agreed upon by the Governments of Texas and the United States: And that the sum of one hundred thousand dollars be, and the same is hereby, appropriated to defray the expenses of missions and negotiations, to agree upon the terms of said admission and cession, either by treaty to be submitted to the Senate, or by articles to be submitted to the two houses of Congress, as the President may direct.
Approved, March 1, 1845.
That Texas had the right to secede as a result of the joint resolution is simply nonsense and mythology.
Texas seceded from the United States on February 1, 1861 and joined the Confederacy on March 2, 1861. When then-Governor (and former President of the Republic of Texas) Sam Houston was evicted from office on March 16, he wrote in refusing to take an oath of allegiance to the Confederacy and refusing to acknowledge the legitimacy of secession:
Fellow-Citizens, in the name of your rights and liberties, which I believe have been trampled upon, I refuse to take this oath. In the name of the nationality of Texas, which has been betrayed by the Convention, I refuse to take this oath. In the name of the Constitution of Texas, I refuse to take this oath. In the name of my own conscience and manhood, which this Convention would degrade by dragging me before it, to pander to the malice of my enemies, I refuse to take this oath. I deny the power of this Convention to speak for Texas….I protest….against all the acts and doings of this convention and I declare them null and void.
Null and void is precisely what the United States Supreme Court would later rule, 5-2, in an opinion written by Chief Justice Salmon P. Chase in Texas v White (April 12, 1869) 74 U.S. 700, 74 (1 Wall.) 700; 19 L. Ed. 227; 1868 U.S. LEXIS 1056:
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?
Consequently, Chase wrote that “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.“
The bottom line is, while some of us would (tongue in cheek) be glad to see the so-called “red states” stop meddling in the politics of America, we would no more abandon women to the compulsory pregnancy laws that would likely result and the rain of terrible laws that would oppress, repress, and generally fuck over just about everybody who wasn’t an angry white male. Secession in that event would likely lead to another civil war.