We Face Irreconcilable Differences.
It’s Time to Break Up the Union
At the conclusion of my earlier piece, I stated, baldly, that we should create a “blue republic”; that is, carve out the blue states (as above) and create a new union.
Many friends, former colleagues, and family members who read that blog wondered whether I intended my conclusion to be tongue-in-cheek. Frankly, when I wrote the piece, I simply followed the logic of my argument and came to this conclusion. But now pressed, I have come to think more and more that my conclusion is correct, or at least to be taken seriously. It is time to break up the Union, one way or another.
My justification for this proposal for dissolution is straightforward: It is time to put an end to the pretense that red-state Republicans honor the same values and ideals we do. Through their actions and rhetoric, they are unable and unwilling to follow our Constitution, to honor democracy, to welcome immigrants, to protect women’s reproductive rights, to integrate society, to examine evidence, to accept science, to recognize and accept facts, and to tell the truth.
Am I here talking about every Republican who lives in the red states? No, I’m not. I am especially focused on Republican politicians. But, honestly, if a Republican isn’t pushing back against the programs, policies, and attitudes that I describe in this piece, then they are included in my condemnation. So consider this discourse to include Republican politicians and all those who enable them to carry out their plans and who assent, even silently, to their divisive rhetoric.
In my prior piece I offered a litany of Republican abuses and unscrupulous practices that showed why and how Republicans have abandoned our founding values and ideals. The litany provided, for me, sufficient evidence of the need to break up the Union and end the pretense of mutual interests. I am going to offer a few more examples, for those not quite convinced of Republican betrayal and venality. Afterwards, I’m going to focus on why we have a right to dissolve the Union, either through secession or through a new constitutional convention.
The GOP Does Not Reflect the Nation’s Ongoing Values
In a poll taken in August, 2017, 52 percent of Republicans said that they support postponing the 2020 presidential election if Trump asked, maybe not even nicely. Half of the party would support a move to postpone this Constitutionally guaranteed and mandated right to an election. Worse, the number jumps to 56 percent of Republicans if Republican members of Congress join in with Trump’s ask.
Why would Republicans want this? They would support the move, so surveys show, if it were in the name of overcoming voter fraud. Voter fraud is the non-existent issue that permits Republicans like Kris Kobach and Brian Kemp, now Governor of Georgia, to pursue voter suppression in an attempt to lessen minority turnout. There is no evidence of voter fraud, not even of Trump’s declaration that Hillary Clinton won the popular vote because millions of undocumented immigrants voted for her.
These maneuvers reflect the values of over half of the Republican Party. Those values are not the values that inform our republic.
Let me remind readers that the Republicans in Congress vowed to make Obama a one-term president, which they failed to do, and thus blocked for eight years all the legislation and appointments they could. They went so far as to oppose the Recovery Act in 2009 in the face of the “Great Recession,” an Act, by the way, that was one-third tax cuts that Republicans themselves had previously proposed. Also, keep in mind that Republican John McCain, clearly not alone, vowed to keep open any and every Supreme Court seat until the Republicans again controlled the White House, no matter how many years that took. So much for respecting the Constitution.
In a working paper from July, 2019, authors Sarah Miller et al. estimate that about 15,000 people died between 2014 and 2017 as the result of red-state governors or legislatures deciding not to expand federally paid-for Medicaid in their states. So much for promoting the welfare of the American people.
Congressional Republicans were so concerned about deficits and the national debt that when Obama proposed the Recovery Act mentioned above, the stimulus package directed at saving our economy, not one GOP House member voted for it. Far better to let Americans lose their homes, their jobs, and their savings than to risk deficits. Then, in 2017, none of the Republican fiscal hawks who had hammered Obama on the dangers of running up the debt and budget deficits peeped word one about Trump’s tax breaks and the ensuing trillion-dollar deficit and effect on the national debt. So much for adhering to fiscal responsibility.
Recently the conservative-packed Supreme Court ruled 5–4 that partisan gerrymandering is beyond the reach of federal courts. So, in addition to voter suppression, Republicans can continue with their undemocratic practice of carving up congressional districts so that a minority Republican vote yields a huge majority of seats. Simply stated, this is election rigging, and it eliminates any desire for bipartisanship. So much for defending democracy.
With June 2019 the hottest June ever recorded, and with this July turning out to be the hottest July on record, Senate Democrats contacted their Republican colleagues and offered to create a joint committee on the climate crisis and climate change. The Republicans refused. So much for stewarding our planet.
Why Are Republicans Doing This?
Why have so many Republicans gone all-in on Trump and abandoned our Constitution, our democracy, the planet, and their own principles? Part of the answer is that those elected to Congress fear the Trump, now Republican, base and fear being primaried from the right, the only way, given gerrymandering, that they might be unseated. So they are driven by self-interest to maintain power at the expense of any claims to principles, consistency, and integrity.
Yet another answer is that this is really nothing new in Republican politics. I traced their cavalcade of monstrosities back to Reagan. Other students of politics like Tim Alberta (American Carnage) travel past Reagan back to Barry Goldwater, when the Republican candidate won only his home state of Arizona and, presaging the GOP’s ongoing white-identity strategies, the deep South. Actual scholars of American history could also point out that the 19th-century GOP saw to it that the additions of North Dakota, South Dakota, Montana, Wyoming, and Idaho gave them Electoral-College protection in maintaining power and control, something we see even today.
For Republican politicians, then, holding onto power is their ultimate goal. As we’ve seen, they will go to extreme lengths to do so. Thus it is no accident, and no surprise, that Senate Leader Mitch McConnell has refused to consider any legislation to protect our elections from foreign interference, the kind of interference from Russia in 2016 that sought to help Trump get elected. If something helps these Republicans, regardless of its foundational turpitude, then they’ll pursue it.
Republican politicians may want political power, but they don’t trust government to deal with our national problems or to spend our tax dollars wisely. Nor do these Republicans trust democracy. That is so, because they don’t trust the people. Otherwise, they would not spend so much time, effort, and money creating voter ID laws to end a voter-fraud problem that doesn’t exist; closing polling stations or limiting the time to vote, especially in minority districts; trying to use a 2020 census question about citizenship to undercount immigrants and minorities and thereby alter in their favor federal funding and government representation; and now, thanks to SCOTUS, legally gerrymandering Congressional districts so that Republicans face little if any opposition when they run for office.
What is the point of all of these Republican shenanigans? As said, the point is to assure that Republicans stay in power, even at the cost of our democracy. If they don’t trust the people and don’t want to do the people’s work, then what are they doing? They are controlling the wealth of this nation to benefit fellow Republicans and their donors. It’s that simple.
Republicans seem bent on achieving only one main goal: lower taxes for businesses and the wealthy. Of course, if government is to do anything — and for Republicans the only spending that they also seem committed to is military spending — then the federal government has to rely on some flow of revenue. So not everyone can escape paying minimal taxes. As we have seen with Trump tax cuts, the wealthiest will get the largest tax breaks, the wealthy the next largest break, and the middle class will see an increase, however small, in their taxes.
Tax increases aside, what, then, is the middle class getting from Republicans? As Trump has made transparent, they are getting increased security, allegedly, 1) through increased military spending and 2) through protections against minorities, against the flow of immigrants, and against Democrats taking power.
But are Republican politicians really so venal as to cater only to the rich? Well, yes, and you can lump in here as well many centrist Democrats also serving in Congress. Those who contribute, and especially those who contribute mightily, to political campaigns have greater access to and influence over politicians than do common citizens and small donors.
The empirical evidence is in on that fact. Two political scientists, Martin Gilens and Benjamin Page (Democracy in America? What Has Gone Wrong and What We Can Do About It) compiled data from roughly 1,800 policy initiatives between 1981 and 2002. They found through the data that lawmakers followed the directives of the 10 percent wealthiest Americans and followed the opinions of major lobbying and business groups. In short, lawmakers respond to the policy demands of wealthy individuals and monied business interests, those with the most lobbying clout and deepest pockets for bankrolling campaigns. This situation is so dire that Gilens and Page conclude that “the preferences of the average American appear to have only a minuscule, near zero, statistically non-significant impact upon public policy” (my emphasis).
We call this kind of government an “oligarchy.” But that simply means “rule by the few.” The few in our case are the rich few. This form of government is called a “plutocracy.” Republicans participating in or enabling of Trump’s gator swamp of crony corruption are a sign that Republicans are in politics for self-aggrandizement and control of the nation by and for the wealthy elite.
Because Republicans can continue, as I argued previously, to use the Electoral College to control the Senate and, without winning the popular vote, to control the White House; because they can stack the Supreme Court and lower courts to make it easier to continue stealing elections; and because of their blatant use of dirty tricks (voter suppression, gerrymandering, citizenship questions, etc.), they can maintain their power. The casualties here are democracy, rule of law, individual rights, inclusion of minorities and immigrants, and our Constitution. If you are not yet convinced that Republican politics have irredeemably betrayed the Constitution, consider one more example.
Is the Constitution Still Serving Its “Special Purposes”?
One central purpose of the Constitution is to assure republican forms of government. As Madison discusses in Federalist 43, the Guarantee Clause of the Constitution, appearing in Article Four, mandates that all states must have “a Republican Form of Government.” What is “a republican form”? At the very least, it means a mix of separated and co-equal powers. One of those powers is a “representative ” body elected by the people. This form of “representative democracy” rests for the founders on the republican principle of the consent of the governed where the people are sovereign. If the people are prohibited from voting or from receiving a fair representation in their state legislatures, then this clause of the Constitution is violated.
Current Republican practices within states show the violation. Voter suppression, heavily partisan gerrymandering, chicanery to underreport persons living in the states in order to alter federal expenditures and to favor Republican Congressional representation, and refusing to safeguard our elections state-by-state from foreign interference undercut the republican form of government. In short, in Madison’s view, “the only restriction placed on [the states] is that they shall not exchange republican for anti-republican Constitutions.” This is precisely what Republican practices have done. Thus they have abrogated the Constitution.
These and other Republican violations warrant secession from the Union of any state that wants fair representation, equal voting rights, and governments that will work, as the Preamble states, to promote the general welfare of all the people.
So, instead of battling Republicans at every reprehensible turn and step, moving forward, let’s spend our time, energy, and resources building up a republic that honors and protects immigrants, women, diversity, facts and science, truth, education, the rule of law, and the planet. So many Republicans don’t honor any of that.
Since such Republicans no longer share the values that formed and shaped this nation, since they have abrogated the Constitutional provision for republican forms of government and, as outlined in this essay, disregarded stated provisions and powers within the Constitution, it is time to dissolve the Union. It is time for secession or for a new constitutional convention to ratify a new constitution. We need to undertake one of those options, and we have a right to undertake either option.
The Remedies for Republican Betrayal of the Union
Can an entire contingent of blue states leave the Union? Although Article IV, Section 3 of the Constitution specifies how new states can join the Union, there are no specifications on how to leave the Union. What would happen if a collection of blue states decided to leave — not one state, but several if not many states?
We don’t know what would happen. When a contingent of Southern states sought in 1860 to secede, we fought the Civil War to keep them. But if states can join the Union, then why can’t they also leave the Union?
The states that constituted the United States in 1789, when the Constitution was ratified, had in effect seceded from the confederation that was created through adherence to the Articles of Confederation. They did so, because the Articles of Confederation no longer met their objectives (had, in Hamilton’s words, “important defects”). In other words, one perspective, offered by Cynthia Nicoletti in her book Secession on Trial, is that our current Union was itself formed out of secession (2017, p. 16).
Madison writes that at the time of ratification it was “incumbent on us all to veil ideas [such as secession].” The veil must now be removed. Just as the colonies seceded from the Articles of Confederation that declared its own pact to be “perpetual,”* so now blue states can withdraw from our own federal Constitution, which, by the way, says nothing about perpetuity. Because the Constitution is not perpetual, it is not a document that was intended to last forever.
[*Article 13 of the Articles of Confederation states “…the Union shall be perpetual…”]
In other words, the states could secede from a union that was deemed perpetual. So how, then, can states today be denied secession from a union that is not itself expressly perpetual?
In the face of this conundrum and in the aftermath of the Civil War, Chief Justice Salmon Chase in Texas v White declared secession to be unconstitutional. In his view, the Articles of Confederation established a union in perpetuity. Thus the new Constitution, since it forms even a “more perfect Union,” as stated in the Preamble, must itself be perpetual. The new Constitution created a federal government that better held that perpetual Union in place. Secession, then, had to be unlawful.
What is Chase’s argument? It should be a significant one, since Chase’s ruling of secession as unconstitutional rests on it. As students of the courts and politics, then and now, have pointed out, Chase made no argument. He simply declared that the Union was perpetual without offering any justification for that declaration.
Contrary to Chase, we can equally hypothesize in two different ways how under the new Constitution this Union is “more perfect.” The first way is that the Constitution recognizes and emphasizes the people — “We the people.” The people, although operating through representatives from their states, nevertheless retain ultimate sovereignty to dissolve the Union when it no longer “promotes the general welfare” or “secures the blessings of liberty” — phrases also from the Preamble. Rather than being “more perfect” in its institutional cement, the new Constitution rests on a commitment to the values expressed in the Preamble as determined by the people.
The second way that the Constitution is “more perfect” is that it serves as the instantiation of the values expressed in the Declaration of Independence. In short, the Union under the Constitution is now “more perfect” because it is not perpetual. The Constitution does not trap the states in a form of bondage where the only recourse to a “train of abuses,” as the colonies discovered with King George III, is revolution.
If the people are sovereign, as the opening words of the Preamble indicates, and if in their states they decide to secede, then it is their right to do so. The Constitution itself is “ordained and established” by the people. Therefore only the people acting in their aggregate capacity can determine whether any state can secede. If that is so, then a majority vote of all the people within a state can permit that state to secede. The same logic would hold for several states. Those blue states wishing to secede could win such a majority vote within those states.
Yet Hamilton pointed out in Federalist 82 that “the states (my emphasis) will retain all pre-existing authorities which may not be exclusively delegated to the federal head.” From this perspective, it is the states that ratified the Constitution and acceded to the Union, rather than the people themselves. Even if we concede Hamilton’s point, if the states have a right to join, do they not also have a right to secede? Did the states ever delegate their right to do so? Also, is the right to secession not itself a pre-existing authority, an authority as sovereign states that they would surely wish to retain?
Hamilton argues in Federalist 9 that the adoption of the new constitution forms a new union as a confederacy of states. As a confederacy of states, the new union is no different from that under the Articles of Confederation. In the Articles each state “retains its sovereignty, freedom, and independence.” So, too, then with the new union. If states lacked that retention, then states in surrendering their sovereignty when signing on to the Constitution would themselves be signing on to a form of slavery. To avoid that, states must have the ability to secede, just as they did from the Articles of Confederation.
Additionally, in Federalist 40 Hamilton further argues that the fundamental principles of the confederation are in play in establishing the new constitution — “that the states should be regarded as distinct and independent sovereigns.” If secession is unconstitutional, then that calls into question the very sovereignty of the states and makes the federal government supreme. Then what could stop the growth of federal power over the now subordinate states? Is this system thereby any longer a form of federalism?
The “Compact” Argument
The Articles of Confederation and the Constitution both offer frameworks for establishing a central government. How did the delegates come to establish such governments? They did so by agreeing to a compact, which is another term for constitution, that which “fastens together” the constituent parts. In short, the Constitution as a compact “constructs” the nation through “an agreement or contract” (from com or “together” and pacisci, to “contract, covenant, or fasten”). If a constitution is not a compact, then what is it? It is no answer to say that it is “a constitution,” since the word itself stipulates nothing more than “setting up (statuere) together” (com), just as a compact “fastens together.” So if the Constitution is a compact, then cannot those who worked together — in this case, the states — not withdraw from that compact, just as the states had done with the Articles of Confederation?
In Federalist 22 Hamilton wrote that, however gross a heresy, the doctrine that “a party to a compact has a right to revoke that compact…has had respectable advocates.” For whom, then, is it a heresy? Certainly not for founders like Gouverneur Morris, Elbridge Gerry, and James Madison who revoked the compact of the Articles of Confederation.*
[*: This from Thomas Jefferson: “But that, as in all cases of compact among powers having no common judge [all being equally sovereign], each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress” (The Writings of Thomas Jefferson, Bergh, Albert Ellery (Ed.), 20 Volumes, Washington, DC: The Thomas Jefferson Memorial Association, 1905, Volume IX, pp. 464–5). Earlier in the same piece Jefferson wrote: “Resolved, that the several states composing the United States of America, are not united on the principle of unlimited submission of their general government; but that, by compact under the style and title of the Constitution of the United States, and of amendments thereto, they constitute a general government for special purposes…”]
This brings us back to the original and ongoing point: If states retain their sovereignty, then they have the right to break from the compact and secede.
They could do so through a state-wide referendum. Each state would determine its threshold vote, but to avoid the fiasco of Brexit, where 51.9% voted to leave and 48.1% to stay, the threshold might be as high as 60%.
Let us say that all the blue states, through these referendums, voted to leave. What would happen? There is no mechanism, short of war, to force the states to remain. If the blue states have a right to secede, then do red states have an obligation not to interfere with the exercise of that right? The United Nations Charter, the United Nations International Covenant on Civil and Political Rights, and other documents proclaim the right of all peoples to self-determination. This seems another way of saying that the people are sovereign over their own lives and therefore have a right to direct those lives. State-wide referendums on secession can be viewed as one way of a people exercising their right of self-determination in the context of grievances against the federal system.
The Koch Brothers Do the Left a Favor
Secession is not the only avenue available to breaking up the Union. It is not even the most likely or, for some, the most appealing or realistic. That other avenue is dissolution through a new constitutional convention.
For years the Koch Brothers have bankrolled a movement, Citizens for Self-Governance (CSG), to create a new constitutional convention. Article V of the Constitution stipulates that if 34 states call for a constitutional convention, then Congress must convene one. Charles and David Koch are only six states away from having the mandatory 34.
Of course, the Kochs have their own agenda — for example, passing a balanced-budget amendment. Other Republican nuggets in the pipeline include ending the income tax, eliminating regulatory agencies like the EPA, terminating all labor protections (including laws against child labor), letting states ignore anti-discrimination regulations, and imposing term limits so that corporate lobbyists and legislative staffs have the only “institutional memory.”
But the Kochs and other Republicans face a big surprise. Once the convention has started, no one can dictate or predict possible outcomes. Even Justice Scalia admitted that a constitutional convention cannot be restricted to one topic. “Whoa!” he said; “Who knows what would come out of it.” This is so because the Constitution offers no guidance on how the convention is run, what the conventioneers will consider, or how many delegates will attend.
The Koch Brothers might well want only to offer amendments that will restrain the federal government, but, as Chief Justice Warren Berger commented, a constitutional convention can write its own rules and set its own agenda. After all, the convention in 1787 went well beyond its mandate to amend the Articles of Confederation.
Indeed, the convention itself could alter the process for ratifying amendments to the Constitution. Why not amend the Constitution to permit secession? Why not go beyond amendments, as the Constitutional Convention did in 1787, and vote on secession of blue states? How about an amendment for dissolving the Constitution itself? That could be done, if 38 states agreed to it. Then the 50 states would be able to exercise sovereign jurisdiction over their territory. Each state could decide how, when, and with whom to create a new constitution. Hey, Republicans, you cherish states’ rights? Here you go.
If conservatives like the Kochs are eager to see the federal government restricted in its reach and power, how about taking the final logical step and dissolving that government altogether? They would be quite happy to see the end of the IRS, the Fed, Social Security, Medicare, Medicaid, all federal departments — presumably everything federally owned and controlled would come under individual states’ purviews. But national treaties and alliances and agreements would be abrogated; federal military bases, resources, and operations such as the FDA, CDC, and the FAA would be suspended, if not ended. Chaos would ensue.
This is why the blue states, prior to the convention, could write a new constitution, ready for ratification. Those states agreeing would form a new republic to negotiate alliances, treaties, and agreements based on the resources this coalition of states owned and controlled. The only true downside to dissolution: Will the red states retain nuclear weapons? Give them the land-based missiles, most of which are already in the red states. Blue states will keep the planes and submarines.
Of course, the red states are not going to ratify a blue-state constitution, which could establish all of the elements and policies that many red-state Republicans loathe (abolition of the Electoral College, alteration of the Senate, a newly defined popular House, rank-choice voting for federal offices, etc.) So the blue states fail to reach the required 38 states threshold. What happens then? But why can’t this new constitutional convention amend the required number of states needed for ratification? The founders altered that number. Why can’t we?
By whatever means, secession or convention, the time has come to break up the Union. Whether that break-up results in a sweeping blue-state republic or in several regional republics doesn’t matter at this point. What does matter: Today we no longer have the time to make peace with Republicans or even with heel-dragging Democrats on climate change. That issue is the game-changer. Only immediate and dramatic moves toward sustainability and renewable energy can possibly avoid disaster. In 1999 Republicans were asked whether they thought that climate change was a pressing concern. Only 15 percent thought so. Today, when Republicans were asked the same question…only 15 percent thought so. No change in perspective in 20 years, despite the consensus among climate scientists and the evidence appearing to us daily of devastating fires, floods, drought, and hurricanes. Let’s stop pretending that Republican politicians see the value in bipartisanship.
Only one party in the United States today is offering policies to save humanity and save our planet. The Green New Deal, offered by progressive Democrats, contains the blueprint for the start of the fight against climate change. Even though some blue states have enacted legislation in the Deal’s spirit, the Trump Administration and Republicans in Congress stymie those states’ efforts through ongoing federal deregulation of environmental protections, the continued practice of subsidizing oil and gas corporations, renewed efforts to restore coal production, the lowering of auto mileage per gallon, the sustained refusal to acknowledge that climate change is an existential emergency, and the denial of the broad and deep scientific evidence that underlies that acknowledgement.
These maneuvers are from the Republican playbook of retaining power on behalf of their benefactors and corporate friends and at great costs to our people, our democracy, our environment, and our planet. In the face of the climate crisis and our political turmoil, Republicans continue adding maneuvers to the playbook. They have run their program for too long. It is time to put an end to it. The only way to stop the carnage and to redeem our values, ideals, and principles is to secede from this Union or dissolve this Union and create one that is truly “more perfect.”