Did the Constitution permit Southern states to secede from the United States?

Stephen Kershnar

The Civil War and Secession

Dunkirk-Fredonia Observer

November 18, 2019

I recently rewatched Ken Burns’ outstanding Civil War documentary. It raised the interesting issue of whether the Constitution allowed Southern states to secede.

The legal status of secession is independent of its moral status. Slavery was a monstrous evil and eliminating it justified killing some people and breaking their things. Whether the benefit of eliminating slavery was greater than the cost of 620,000 dead soldiers, many more badly wounded or maimed, and half an economy wrecked is a discussion for another day.

It is not entirely clear whether the Constitution permitted secession, but it probably did.  First, while the Constitution is silent on whether states had a legal right to secede, there is good reason to believe that some of the people who ratified it intended that it permit secession. In addition, when it was passed, many people likely understood it that way.

In 1798 and 1799, Kentucky and Virginia passed resolutions that asserted that the states created the federal government by contract and had a right to judge whether the federal government violated the contract. Implicit in these resolutions was the notion that the states may secede were the federal government to violate the contract. This was one of the reasons the states had such a right. Significantly, James Madison and Thomas Jefferson authored the resolutions. Madison and Jefferson were the fathers of the Constitution and Declaration of Independence respectively.

There is a problem interpreting Madison’s intention. He and fellow Federalist Papers authors Alexander Hamilton and John Jay argued that the Constitution did not permit secession. There is thus an issue as whether Madison and other founding fathers viewed federal tyranny as justifying secession or revolution. The former makes more sense in that making the sort of judgment needed to justify a revolution doesn’t require resolutions reserving various legal rights.

Other signatories and early American leaders understood the Constitution as permitting secession. Consider, for example, President James Buchanan, Vice President John C. Calhoun, and founding father Gouverneur Morris. Still, other early American leaders, such as President Andrew Jackson, denied that it permitted secession.

The people who drafted the Constitution were well aware of the issue of secession. If they had wanted to prohibit it, they likely would have done so.

In addition, the secession-permitting view makes sense of the fact that the Constitution was ratified only when the states withdrew from the Articles of Confederation. This withdrawal happened despite the Articles’ purporting to create a perpetual union. Similarly, the U.S. permitted Texas to withdraw from Mexico despite the Mexican constitution not permitting it to do so. The recognition of states’ right to withdraw from contracts similar to the Constitution would be odd if the Constitution did not also include a similar right. 

Second, the structure of the country following the ratification of the Constitution supported a right to secede. The delegates who authorized the Constitution did so on behalf of the states. The states authorized the Articles of Confederation, the Constitution’s predecessor. In addition, the Constitution viewed the states as sovereign. It provided that federal law took priority over state law (see Article VI Section 2), but the federal government’s powers were few and well-defined (see Article I Section 8). The Constitution assigned any rights and powers not explicitly granted to the federal government, or necessary to exercise these powers, to the people or the states. See the Ninth and Tenth Amendments. It would be surprising if the states authorized the federal government and remained sovereign following authorization of the Constitution and yet didn’t have the power to secede were the federal government were to exceed its few and well-defined powers.  

Third, following the Civil War, the North’s passage of the Civil War Amendments (Thirteenth, Fourteenth, and Fifteenth Amendments) was so inconsistent with its anti-secessionist position that one wonders whether its view was coherent. Congress didn’t allow some Southern states to vote in Congress on the Amendments. It later allowed them to get their Congressional seats back only if they ratified the Amendments. This doesn’t make much sense if secession was illegal and, as a result, the states didn’t, and couldn’t, leave the union.   

Fourth, justice permits secession. In general, self-determination is good and right. Consider, for example, the Soviet Union’s dissolution. Consider, also, peoples who escaped colonialism. See, for example, Algeria, Brazil, Haiti, India, Jamaica, Kenya, Nigeria, Pakistan, and Peru.

In partnership law, people in a partnership are permitted to withdraw from it. They might have to pay damages for doing so, but they are not locked into a partnership for perpetuity. In contract law, if contractors misunderstand a material term in the contract, there is no meeting of the minds and, hence, the contract is void. Disagreeing about whether the constitution permits secession is arguably such a misunderstanding.  

Following the Civil War, a later Supreme Court decision, Texas v. White (1869) held that secession was illegal. Its reasoning was so quick and shoddy as to not warrant serious consideration as an argument against secession, although it might carry weight as precedent. Berkeley Law’s Daniel Farber argues that even if, prior to the Civil War, the Constitution permitted Southern states to secede, the Fourteenth Amendment’s Citizenship and Privileges and Immunities Clauses now prohibit secession. I doubt this view is correct, but in any case, it isn’t relevant to pre-war secession.   

This debate is not merely of theoretical interest. Secessionist movements are found in a number of states, including Alaska, California, Montana, New Hampshire, and Texas. Red and blues states intensely disagree about discretionary wars, fossil fuel, freedom of speech and religion, guns, open borders, race quotas and preferences, socializing child-rearing, medicine, and higher education, and politicizing federal agencies. One solution might be to split the country in two and avoid the need to yolk together people with radically different values who increasingly don’t much like each other.

Affirmative-Action Jurisprudence: Court Greenlights Naked Discrimination Against Asians

Stephen Kershnar

Harvard Admissions: Asians are Dull

Dunkirk-Fredonia Observer

November 4, 2019

In a recent case, Students for Fair Admissions, Inc. v. Harvard University (2019), a federal court judge, Allison Burroughs, ruled that the Constitution and 1964 Civil Rights Act permit Harvard to discriminate against Asians.  

Burroughs followed Supreme Court precedent in holding that a policy of an institution that receives federal dollars and uses race or ethnicity as a factor must receive strict scrutiny. This means that the state has a compelling interest in the institution’s goal and its means is narrowly tailored to achieve that goal.

The judge found that the state had a compelling state interest in Harvard’s goals. She listed Harvard’s incoherent soup of goals. The soup includes preparing students to be leaders in a diverse society, exposing them to people from different races, backgrounds, and life experiences, teaching them to engage with people different from themselves, expanding the curriculum, and promoting the faculty’s research interests. On a side note, none of this has been shown to increase academic performance when compared to purely meritocratic admissions.   

Burroughs further found that the university admission’s system was narrowly tailored to accomplish these goals. In particular, she found that race was used as part of an individualized and holistic review of each applicant’s file. This was done to ensure that serious consideration was given to the many ways an applicant might contribute to a diverse educational environment. This apparently explains why black and Hispanic students at Harvard were admitted with SATs roughly 120 and 110 points lower than Asians and 60 points and 80 points lower than whites.

The discrimination against Asian occurred in part because Asian applicants were judged to be less attractive as people (lower personal ratings) than members of other races. This despite the fact that the people who interviewed them didn’t see them as having less attractive personalities and the fact that they were more likely to engage in extracurricular activities. Still, admissions officers who never met them viewed them as having less attractive personalities. Harvard further argued that without this considering race, there would be fewer black students and, so, they would feel alienated.  

What is interesting is not Harvard’s paper thin goals or the dubious Asians-are-less-attractive-people way in which they were discriminated against. Rather, it is the degree to which leftist ideology controls the way in which Harvard argued the case and the judge decided it.

Burroughs stated that it was “somewhat axiomatic” that racial diversity is an important aspect of education. She argued that “a heterogeneous student body promotes a more robust academic environment with greater depth and breadth of learning, encourages learning outside of the classroom, and creates a richer sense of community.” Side note: This suggests that it is not axiomatic.

None of this is supported by the academic literature, especially when compared to an admissions process that admits students purely on the basis of academic excellence. Nearly 8,000 applicants to Harvard had perfect GPAs, 3,400 had perfect math SATs, and 2,700 had perfect verbal SATs. There is no evidence that the student body would learn or accomplish less if it were chosen purely for academic excellence. On a side note, Burroughs and I attended the same law school a few years apart. It had almost none of the diversity she now thinks is axiomatic and we both received an excellent education.  

In addition, diversity is what you want it to be. Children of ICE officers, correctional officers, evangelical Christians, ex-felons, former drug addicts, loggers, Marines, and porn actresses would add diversity. There is no way in theory or practice to decide whether they add more or less diversity than do black and Hispanic students. The interest in demographic diversity conflicts with the interest in diversity of ideas and experiences. In a campus in which the students and faculty already skew far left, adding more blacks and Hispanics further skews it to the left and, thus, reduces diversity of ideas. Favoring minorities over ex-felons, Marines, and porn actresses lessens experiential diversity. 

Also interesting is the degree to which Harvard chooses students for reasons other than academic excellence. Roughly a third of its students are athletes, legacies, dean’s list applicants (often children of big donors), and children of faculty and staff. These groups are accepted at high rates. For whites, the acceptance rate is as follows: recruited athletes (88%), dean’s list (48%), and children of faculty and staff (43%). Some of this is unsurprising. For example, big-time donors benefit the whole campus.  

Further interesting is the fact that some of Harvard competitors don’t try to compete by doing something different. Second tier Ivy League and their elite cousins (Brown, Columbia, Cornell, Dartmouth, Duke, and Rice) compete against the first tier (Harvard, Princeton, Stanford, and Yale) for students, faculty, and alumni dollars. One way they might do so is by distinguishing themselves by doing something different. For example, they might focus solely on academic or research prowess and reject any anti-meritocratic factors (for example, athletics, diversity, and legacy). So deeply embedded is the left’s commitment to demographic diversity that none distinguishes itself by taking this obvious step.   

There is no right answer as to whether a school should favor academic prowess over excellence in polo, sailing, and squash. Universities have multiple goals. These include attracting the best students, being a top flight research center, increasing endowment, keeping the federal money spigot open, and promoting equal opportunity. Different admissions criteria will affect these goals differently. There is no right answer, other than the preference of a university’s owners, as to which of these goals a university should have and how to prioritize them.

Making things murkier is the fact that it is unclear who owns Ivy League schools. The trustees are elected, college officials are mere employees, and it doesn’t have private owners similar to those found in a partnership or a publicly traded corporation. In short, the issue of admissions defies a principled solution. Even in this context, though, Harvard’s anti-Asian discrimination is distasteful.

Criminality and Corruption in the Federal Government

Stephen Kershnar

Criminality, Corruption, and Trust

Dunkirk-Fredonia Observer

October 21, 2019

Top government officials are increasingly above the law. The elite power structure (academia, media, political parties, and social media giants) pretends not to notice. At issue is whether this is a threat to the country or just the same old same old.

Exhibit A is the FBI and DOJ’s Russia Hoax. Leading FBI officials repeatedly and fraudulently applied to a FISA court to get secret warrants. The FBI’s internal documents made it clear that its leaders knew that the basis for the warrants (Steele dossier) was rife with falsities and unverified. Disgraced FBI head James Comey oversaw some of this fraud on the court, illegally leaked documents, likely lied repeatedly to Congress (he and his lieutenant - Andrew McCabe – contradicted each other), and tanked the prosecution of Hillary Clinton. Comey did so despite knowing that Clinton and her associates openly defied subpoenas, destroyed evidence, and intentionally mishandled top secret documents. Federal prosecutors recommended that Comey’s lieutenant, Andrew McCabe, be indicted for lying to investigators. No adult thinks Clinton, Comey, McCabe, etc. didn’t break the law.

McCabe and the disgraced Deputy Attorney General Rod Rosenstein fought over whether Rosenstein would wear a wire when meeting with Donald Trump and pursue a 25^th Amendment plan to remove him. McCabe had a massive conflict of interest when the Clintons’ money man supported his wife’s run for office. Other officials also engaged in FISA abuse, illegally leaked documents, lied under oath, obstructed justice, and spied on the Trump administration. To date, a number of leading FBI and DOJ officials have been demoted, fired, or resigned in disgrace over the Russia Hoax and related spying. None of these criminals has been prosecuted.

Exhibit B involves the Obama Administration. The Russia Hoax began during the sleazy Obama presidency. The IRS admitted to illegally targeting Tea Party groups. The IRS official in the middle of it, Lois Lerner, pled the Fifth. She was held in contempt of Congress. Obama Attorney General Eric Holder was also held in contempt of Congress. He refused to hand over documents relating the Fast and Furious gun running scandal. The DOJ refused to prosecute Lerner and Holder. Holder has a history of sleaziness. He oversaw Bill Clinton’s pardon scandal when pardons were doled out to a spouse of a big donor to the Clinton Library (Marc Rich), Bill’s brother, and one of the people at the center of Clintons’ dirty Whitewater deal (Susan McDougal).

Fun fact: Comey was tasked with determining whether the Rich pardon was illegal. He found it wasn’t. Again, none of these criminals have been prosecuted. Holder successor, Attorney General Loretta Lynch, yet another sleazebag, had to distance herself from the Clinton email investigation because of dubious behavior.

Exhibit C. Leading intelligence officials blatantly lied to Congress. This is a felony and one for which private citizens have been recently charged. The director of national intelligence, James Clapper, lied to Congress about the NSA’s electronic searching of Americans’ emails, video clips, and pictures without a warrant. The CIA’s John Brennan lied to Congress about searching computers used by the Senate’s intelligence committee’s staffers. Again, the criminals skated free. Obama’s government even searched the telephone records of reporters and editors for The Associated press and Fox News.

While not criminal, other forms of dishonesty and corruption abound. The media regularly trumpeted fake news. Examples include Joe Biden and John Kerry’s sons (lavish deals prematurely judged to be kosher), Covington Catholic High (Catholic school boys falsely accused of having bullied a Native American veteran), Ferguson police shooting (“Hands up, don’t shoot” never happened), Brett Kavanaugh (Christine Blasey Ford’s story fell apart), Russia Hoax, and the Trayvon Martin case (main witness appears to be a fraud). Courts repeatedly block Trump administration’s attempts to rein in the flood of illegal immigration with barely a fig leaf of legality. Campuses look the other way when Antifa and other thugs shut down conservative speakers. Social media giants such as Facebook, Google, and Twitter openly censor the right.

At issue is whether this is a threat to the nation. On the one hand, such widespread criminality in government’s highest reaches threatens to undermine the people’s trust in the government. In addition, corruption in academia, courts, federal intelligence and police agencies, and social media giants encourages further corruption. The criminality, corruption, and lack of trust likely further polarizes the American people. Consider whether FOX and MSNBC viewers will be able to engage in a civil discussion of politics at Thanksgiving. Donald Trump’s voters and Joe Biden’s or Elizabeth Warren’s voters will vie for control of the country with one side, and perhaps both, being disgusted with their country.         

On the other hand, the loss of trust in the government and media has a silver lining. Congress and the last few presidencies are replete with silly mandarins (consider, for example, Bushes, Clintons, John Kerry, John McCain, Obamas, Robert Mueller, Nancy Pelosi, and Mitt Romney). The less they control American lives the better. If the criminality and corruption gins up skepticism about them, all the better. One can’t help but look at the recent presidents’ performance (for example, exploding debt, illegal alien invasion, Obamacare, and housing-fueled economic crash) and wars (for example, Afghanistan, Libya, Iraq, and Serbia) without realizing that Americans’ leaders performed poorly. If diminishing trust comes about via corruption and criminality, rather than poor performance, perhaps this is the way to go.

The Obama administration weaponized government agencies (CIA, DOJ, FBI, IRS, and NSA), but this probably will be reversed. The corruption found in cities such as Chicago and New York City and states such as Illinois and New York is nowhere near what it used to be. The same will likely be true for the federal government.

In the end, I suspect less trust in government is a good thing. Criminality and corruption will be corrected and the polarization of politics will give voters more of a real choice. Still, this is just a guess.