Wednesday, November 14, 2012

A number of secession petitions have been received by the White House

(T)he White House says it will  review and respond to petitions that obtain more than 25,000 signatures. Three secession petitions, from Texas, Louisiana and Florida, have passed that threshold. Texas leads all petitions, with 82,799 online signatures, which the White House confirms through email.ABC News, November 13, 2012
Apparently such petitions have been circulated in some 40 states.

In 1777, early in the Revolutionary War, the former colonies agreed to Articles of Confederation and Perpetual Union.

In 1787 the created the U.S. Constitution, with the following preamble.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Note, the preamble says that it is the people, not the states that establish the Constitution. Moreover, the Constitution is "to form a more perfect union" -- presumably to perfect the "perpetual union" created by the Articles of Confederation.

Abraham Lincoln expressed the fact that the Union is perpetual in his first Inaugural Address:
   I hold that in contemplation of universal law and of the Constitution the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our National Constitution, and the Union will endure forever, it being impossible to destroy it except by some action not provided for in the instrument itself. 
  Again: If the United States be not a government proper, but an association of States in the nature of contract merely, can it, as a contract, be peaceably unmade by less than all the parties who made it? One party to a contract may violate it—break it, so to speak—but does it not require all to lawfully rescind it? 
  Descending from these general principles, we find the proposition that in legal contemplation the Union is perpetual confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was "to form a more perfect Union." 
  But if destruction of the Union by one or by a part only of the States be lawfully possible, the Union is less perfect than before the Constitution, having lost the vital element of perpetuity. 
  It follows from these views that no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void, and that acts of violence within any State or States against the authority of the United States are insurrectionary or revolutionary, according to circumstances.
The Civil War clearly established that secession was not allowed under the Constitution. Moreover, after the war, Section 1 of the 14th Amendment was intended in part to specifically deny the right of any state to secede from the Union, stating:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Were a state to secede, its citizens would thereby be deprived of the privileges and immunities of citizens of the United States, and thus secession is unconstitutional.

Section 3 of Article III of the Constitution states:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The U.S. Code states:
Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.
 And the 14th Amendment to the Constitution states in Section 3:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. 
Let me then ask the question. Do people owing allegiance to the United States who sign a petition calling for secession thereby give aid and comfort to the enemies of the United States? If so, are they now banned from holding office in the federal government or in state governments?

I suggest that the major precedent for considering the response to people now proposing secession is from the Civil War and its aftermath. Amnesty was offered to people who had participated in the secession if they signed an oath of allegiance to the United States, and if they fulfilled other conditions such as not having been in a leadership position in the Confederacy. The major declaration defining the conditions for amnesty was issued by President Johnson in 1865. The leaders of the secession movement, however, were required to apply to the President of the United States for a presidential pardon.

President Johnson did in fact issue a large number of pardons.
The president received thousands of amnesty applications. By late 1867 he had already granted 13,500 pardons. In September 1867, the president issued a second proclamation which reduced the number of exception categories from 14 to 3. On July 4, 1868 President Johnson issued his third proclamation which only excluded Jefferson Davis (President of the Confederate States of America), John C. Breckinridge (Confederate Secretary of War and a Confederate general), Robert E. Lee (Confederate general), and a few others. On Christmas Day of the same year Johnson issued his final proclamation, which granted amnesty to all who had participated in the rebellion.
Does this precedent suggest that full rights as citizens of the United States might be restored to the people who signed these petitions after they have signed oaths of allegiance? Perhaps the people who organized the petitions might be considered for pardon if they request a presidential pardon.

I look forward to the government's response to the large petitions to clarify these issues. 

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