After the Constitution Fails, What Then?

Let’s assume there was a failure somewhere in the chain from impeachment to conviction and now the electorate — bearing witness — must face the immediate aftermath of a failed federal government. The next step ventures immediately into dangerous, uncharted waters because there is no US Constitutional guidance once the Constitution has proven to not hold. Some would say that is ammunition for a robust Second Amendment but let’s set that aside and assume that the pen is mightier than the sword.

There have been legal opinions drafted by the US Supreme Court in regard to state’s rights to secede:

In the case of Texas v. White in 1869, Supreme Court Chief Justice Salmon P. Chase wrote that, “The union between Texas and the other states was as complete, as perpetual, and as indissoluble as the union between the original states. There was no place for reconsideration or revocation, except through revolution or through consent of the States.” The majority opinion struck down the Texas Ordinance of Secession, calling it “null,” and crafted a decision that rendered all acts of secession illegal according to the “perpetual union” of both the Articles of Confederation and subsequent Constitution for the United States. Chase did leave an opening, “revolution or the consent of the States,” but without either, secession could never be considered a legal act.

(Source: The American Conservative, Brion McClanahan, “Is Secession Legal?”)

US Supreme Court Justice Antonin Scalia concurred that states do not have the right to secede:

Scalia argued that a the question was not in the realm of legal possibility because 1) the United States would not be party to a lawsuit on the issue 2) the “constitutional” basis of secession had been “resolved by the Civil War,” and 3) there is no right to secede, as the Pledge of Allegiance clearly illustrates through the line “one nation, indivisible.”

(Source: The American Conservative, Brion McClanahan, “Is Secession Legal?”)

Declaration of the immediate causes which induce and justify the secession of South Carolina from the Federal Union; and, The Ordinance of Secession (1860). (Source of caption and image: Wikipedia | South Carolina State Convention (public domain))

The problem with these positions is they assume that the status of the US Constitution has valid standing; it dismisses the possibility that the people and the states no longer find the federal government legitimate. Assuming the states no longer recognize the federal government due to clear failure to uphold the US Constitution, logically it falls to the state level to determine a course of action and is the only orderly and peaceful remedy in response to a failed federal government. This contingency is not addressed at the federal level but it is at the level of state Constitutions and/or their Bill of Rights.

Examples

New Hampshire

…Constitution guarantees its citizens the right to reform government, in Article 10 of the New Hampshire Constitution’s Bill of Rights: Whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.

Kentucky

…Constitution also guarantees a right to alter, reform or abolish their government in the Kentucky Bill of Rights: All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety, happiness and the protection of property. For the advancement of these ends, they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may deem proper.

Texas

The Constitution of Texas, Article 1, Sect 2: All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.

(Source for the above three references to state governance: Wikipedia)

[Secession movements: Texas Nationalist Movement | Vermont Independent]

Once again, the purpose here is not to be exhaustive of the state-level apparatus in-place to remedy a failed federal or state government but to provide a plausible roadmap for a sound and sane course of action.

For example, in the case of Texas, 40% of Texans would support secession if Secretary Clinton won the election:

Fortunately for Unionists, a clear majority of 59 percent of Texans said they’d rather stick with the Stars and Stripes, while just 26 percent said they wouldn’t. But that number dropped when the pollsters followed up by asking whether voters would support secession if Clinton won the election. Forty percent said they would, including 61 percent of Trump supporters.

(Source: The Atlantic, August 16, 2016, “Will Texas Stick Around for a Hillary Clinton Presidency?”)

Brexit was about Britain leaving the European Union; Texit is about Texas leaving the United States.

Understand: this poll was tabulated by a Democratic entity in August 2016 before there was consummate digestion of the lion’s share of WikiLeaks and before the state of Texas (and other states), with the people behind them, have declared that the federal government has lost legitimacy due to Congress’ failure to impeach and convict President (Hillary) Clinton. In all likelihood, there would be a meeting of the 50 state governors to create a state-level quorum to determine a course of action navigated on peaceful bearings. State secession overtures in modern times have been deemed grandstanding spectacles but under these radical circumstances transform in a heartbeat from spectacle to obligate responsibility to the people they serve and protect.