A pragmatic path to independence

NH Exit
#21

No explicit permission or prohibition of secession can be found in any of the rights, powers, duties, responsibilities, etc. of the United States, the several states, or the people in the discussion so far, we must turn to the last articles and amendments relating to this issue.

United States constitution
Tenth Amendment
The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States
respectively, or to the people.

Ninth Amendment
The enumeration in the Constitution, of certain rights, shall not
be construed to deny or disparage others retained by the people.

The question before us is – would the right of secession default to the State of New Hampshire, or to the people of New Hampshire? It is the state that is seceding, therefore, it defaults to the State of New Hampshire, with the approval of the people of New Hampshire.

Quod erat demonstrandum

#22

The analysis of the legality, including constitutionality, of New Hampshire’s secession from the United States has been based only on what appears to be the case. It is less superficial than the arguments made at the committee hearing on CACR-32, but still, it is far from definitive.

I think that more needs to be done to understand legal definitions and characteristics of treason, levying war, insurrection, rebellion, and sedition.
I think that more needs to be done to understand all case law on the subject.
I think that more needs to be discovered about the actual arguments that lawyers would need to make in a court of law, including before the US Supreme Court(s).

Hopefully I have been able to derive at least an outline of what needs to be done.

#23

As promised, the following file is a slightly spruced up version of the posts made in this thread.

Detailed analysis.odt (36.6 KB)

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#24

I have only barely scratched the surface in my research on “treason”, but it is already apparent that if there is no violence or force involved, it is not treason.

“Peaceful separation” doesn’t even come close to being treasonous.

TREASON, criminal law. This word imports a betraying, treachery, or breach of allegiance. 4 Bl. Com. 75.
The constitution of the United States, art. 3, s. 3, defines treason against the United States to consist only in levying war (q.v.) against them, or in adhering to their enemies, giving them aid or comfort. This offense is punished with death. Act of April 30th, 1790, 1 Story’s Laws U.S. 83. By the same article of the constitution, 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. Vide, generally, 3 Story on the Const. ch. 39, p. 667; Serg. on the Const. ch. 30; United States v. Fries, Pamph.; 1 Tucker’s Blackst. Comm. Appen. 275, 276; 3 Wils. Law Lect. 96 to 99; Foster, Disc. I; Burr’s Trial; 4 Cranch, R. 126, 469 to 508; 2 Dall. R. 246; 355; 1 Dall. Rep. 35; 3 Wash. C. C. Rep. 234; 1 John. Rep. 553 11 Johns. R. 549; Com. Dig. Justices, K; 1 East, P. C. 37 to 158; 2 Chit. Crim. Law, 60 to 102; Arch. Cr. Pl. 378 to 387.
A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.

LEVYING WAR, criminal law. The assembling of a body of men for the purpose of effecting by force a treasonable object; and all who perform any part however minute, or however remote form the scene of action, and who are leagued in the general conspiracy, are considered as engaged in levying war, within the meaning of the constitution. 4 Cranch R. 473-4; Const. art. 3, s. 3. Vide Treason; Fries’ Trial; Pamphl. This is a technical term, borrowed from the English law, and its meaning is the same as it is when used in stat. 25 Ed. III.; 4 Cranch’s R. 471; U. S. v. Fries, Pamphl. 167; Hall’s Am. Law Jo. 351; Burr’s Trial; 1 East, P. C. 62 to 77; Alis. Cr. Law of Scotl. 606; 9 C. & P. 129.
A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.

The First Amendment Defense
The First Amendment is the primary limitation on treason prosecutions. Freedom of speech allows people to express anger toward the government, even a desire to overthrow it, but it doesn’t protect speech that is likely to incite others to violence. But, although words usually can’t constitute treason by themselves, they can serve as proof of the speaker’s treasonous intent.
https://www.criminaldefenselawyer.com/resources/treason.htm

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#25

Searching for info on treason, I came across this:

2010 New Hampshire Statutes
TITLE LVIII PUBLIC JUSTICE
CHAPTER 586 TREASON AND MISPRISION

Entire Chapter was repealed

Disclaimer: These codes may not be the most recent version. New Hampshire may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.

#26

The question of treason again brings up the question of the oath of allegiance to the United States.

From the US Code:
§2381. Treason
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…

Article VI of the US constitution states:
This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the Authority of the United States,
shall be the supreme Law of the Land…

What do we mean when we say that a state secedes from the United States? It means that the state withdraws from the “…Land…” over which the United States claims “…authority…” and jurisdiction. Following secession, the “land” does not disappear, but does shrink in size.

Not everyone who “…[owes] allegiance to the United States…” does so because they have taken an oath of allegiance. Internationally, all natural-born citizens are assumed to owe allegiance to the country in which they are considered citizens, until such time as they transfer their citizenship to another country. It is also possible to owe allegiance to several countries simultaneously, as in dual citizenship.

New Hampshire’s peaceful separation from the United States does not automatically negate or nullify an oath of allegiance to the United States, or nullify an oath “…to protect and defend the Constitution of the United States…”. Article VI defines the area over which the constitution is applicable.

So long as US citizens living in the new nation of New Hampshire do not commit treasonous acts, or violate any of the laws of the United States within the jurisdiction of the United States, the OATH OF ALLEGIANCE REMAINS INTACT.

#27

There are three stages, or levels of action, to becoming independent.
1 Declaration of independence
2 Implementation of independence
3 Maintenance of independence

As discussed earlier, it is the State of New Hampshire that is separating. Has any state, ever, separated from the United States?

The first instance that might be considered separation is that of the potential for some states to separate from the other states of the United States has already been mentioned.

U.S. constitution, Article VII
“The Ratification of the Conventions of nine States, shall
be sufficient for the Establishment of this Constitution
between the States so ratifying the Same.”

What would have happened if the first nine states to ratify the constitution, thus establishing the constitution, were the only ones to ratify the constitution? How would those nine states view the remaining four states? Would those states have succeeded in seceding from the United States, as defined in the Articles of Confederation?

The concept of secession was actually debated over and over prior to the civil war:
“Unlike the Articles, the new Constitution also did not forbid
secession by any state. In fact, it was rather silent on the
subject of secession. But, is its silence evidence in support
of secession? It does not necessarily prove that secession
was possible except for the fact we know from history that
secession was a very real possibility way before the Civil War.”

The next instance occurred with the Civil War.
James Buchanan was president of the United States in 1860, the year Abraham Lincoln was elected president. Interestingly, it appears that the southern states wished to leave peacefully, similar to the current secession movement in New Hampshire.

Some of the southern states vowed to secede if Lincoln was elected to the presidency. Lincoln was elected on November 6th, 1860.

The South Carolina Ordinance of Secession was adopted on December 20, 1860.
http://www.civilwarcauses.org/ordnces.htm#South%20Carolina

The Mississippi ordinance of secession was declared on January 9, 1861.
http://www.civilwarcauses.org/ordnces.htm#Mississippi

The Florida Ordinance of Secession was passed January 10, 1861.
http://www.civilwarcauses.org/ordnces.htm#Florida

The Alabama Ordinance of Secession was accepted on January 11, 1861.
http://www.civilwarcauses.org/ordnces.htm#Alabama

Georgia’s Ordinance of Secession was passed January 19, 1861.
http://www.civilwarcauses.org/ordnces.htm#Georgia

Louisiana’s Ordinance of Secession was adopted on January 26, 1861.
http://www.civilwarcauses.org/ordnces.htm#Louisiana

The Texas Ordinance of Secession was adopted on February 1, 1861.
http://www.civilwarcauses.org/ordnces.htm#Louisiana

James Buchanan was president until March 4, 1861. Lincoln was inaugurated on that date. The United States did not go to war over these secession ordinances.

Originally, South Carolina had owned Fort Sumter, but it, along with other forts, were ceded to the United States in 1805. Thus, in 1861, Fort Sumter was a United States property.

On April 12, 1861, Lincoln attempted to re-supply Fort Sumter. A battle ensued, kicking off the Civil War.

The Virginia Ordinance of Secession was adopted on April 17, 1861, and ratified (by the people ?) on May 23, 1861.
http://www.civilwarcauses.org/ordnces.htm#Virginia

The Arkansas Ordinance of Secession was adopted and passed on May 6, 1861.
http://www.civilwarcauses.org/ordnces.htm#Arkansas

The North Carolina Ordinance of Secession was adopted on May 20, 1861.
http://www.civilwarcauses.org/ordnces.htm#North%20Carolina

The Tennessee Ordinance of Secession was sent to referendum on May 6, 1861 and approved by the voters on June 8, 1861.
http://www.civilwarcauses.org/ordnces.htm#Tennessee

The Missouri Ordinance of Secession was approved October 31, 1861.
http://www.civilwarcauses.org/ordnces.htm#Missouri

The Kentucky Ordinance of Secession was adopted November 20, 1861.
http://www.civilwarcauses.org/ordnces.htm#Kentucky

Seven states had already seceded by the time the Civil War commenced at Fort Sumter. More than three months had elapsed between the first secession and the first battle of the Civil War.

I have not been able to find any record of any legal action taken to address the secessions, and if anyone has any info, it would be greatly appreciated.

#28

One of the many mis-statements that were made during the committee hearing on CACR-32, and that were not countered by anyone from the liberty community present, was the statement that the constitution of the United States was a way of strengthening the Articles of Confederation, and the “perpetual union” of the Articles extended to the constitution.

Nothing could be further from the truth. The Articles of Confederation did, indeed, refer to perpetual union, and forbade secession unless all of the other states agreed:

ARTICLE XIII. Every State shall abide by
the determinations of the United States in
Congress assembled, on all questions which
by this confederation are submitted to them.
And the articles of this confederation shall
be inviolably observed by every State, and
the Union shall be perpetual; nor shall any
alteration at any time hereafter be made in
any of them; unless such alteration be agreed
to in a Congress of the United States, and
be afterwards confirmed by the Legislatures
of every State.

The RedState reference cited in a previous post stated -

“However, the notion of a “perpetual union”
clause in the Newly created Constitution was
suggested, debated and solidly defeated.”
(emphasis mine)

This set up the conditions that allowed open discussion of secession by the politicians of the time.

Again from the RedState article:

“After the election of Thomas Jefferson,
Federalists in New England became so
incensed against the Louisiana Purchase
and other Jeffersonian policies that they
suggested secession. They later organized
a convention in Hartford in 1814 to discuss
seceding from the Union because of the
War of 1812 since it interfered with New
England’s commerce with Britain.
Massachusetts Senator Timothy Pickering
stated that secession was the essence of
independence (emphasis mine). In 1839,
staunch nationalist John Quincy Adams
noted that the notion of secession was
acceptable and in 1845 some leaders again
suggested New England‘s secession from
the Union over the admission of Texas.
Alexander Hamilton, the ultimate Federalist,
believed that coercion of force to keep any
state in the Union was “the maddest projects
ever devised.” During the ratification debates,
Oliver Ellsworth feared armed coercion to
keep a delinquent state in the Confederation.
He noted that this action would strike at the
heart of the American founding.”

These are strong words from many of the most important voices between the American Revolution and the Civil War, and might well be the basis for the absence of any legal action taken against the states seceding from the Union in 1860-1861.

#29

It is often said that the case of Texas v. White et al. definitively settled the question of whether or not secession is legal under the constitution of the United States. The full text of the Supreme Court decision can be found here:

The paragraphs of interest begin with paragraph 97. The arguments are based on the idea of perpetual union found in the Articles of Confederation. They go on to define the Constitution of the United States as a continuation, in modified form, of the Articles of Confederation, thus imposing perpetual union on the union of states formed by the constitution.

As we have seen, no such continuation is in effect, and in fact those deliberating on the constitution actually chose to NOT include perpetual union in the constitution.

Texas v. White et al. was not originally brought to determine the validity of secession. The argument for the invalidity of secession was used as a basis for the decision in a contract case. Furthermore, the justices believed that the invalidity of secession was so obvious that they did not even detail the reasons why it was so.

“98
It is needless to discuss, at length, the question
whether the right of a State to withdraw from
the Union for any cause, regarded by herself
as sufficient, is consistent with the Constitution
of the United States.”

Justice Grier wrote a dissenting opinion. In it he argued that Texas was not actually a state, but a territory and military district (I think I have that right).
https://en.wikisource.org/wiki/Texas_v._White/Dissent_Grier

Therefore, the right of state secession, in an of itself, has never come before the Supreme Court.

#30

A couple of last comments on the relationship between the Articles of Confederation and the U.S. Constitution…

It has been shown that the United States under the constitution was not necessarily the same as the United States under the articles. When the constitution was being ratified, there was no guarantee that all of the 13 states would also enter the Union under the Constitution.

It has also been alleged that the union that the constitution wanted to “… form a more perfect…” instance of was the same union that existed under the Articles of Confederation. If this is true, then the road to perfection included eliminating article XIII of the Articles of Confederation:

“…the articles of this confederation shall be inviolably
observed by every State, and the Union shall be
perpetual; nor shall any alteration at any time hereafter
be made in any of them; unless such alteration be
agreed to in a Congress of the United States, and be
afterwards confirmed by the Legislatures of every
State.”

Article VI of the constitution says:
“This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all
Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme
Law of the Land…”

This omission essentially eliminated any reference to secession and to the idea of “perpetual union”.

Not only was article XIII not imported into the constitution, but there is nothing about any part of the Articles of Confederation being included in the “…supreme Law of the Land…”

In other words, the Articles of Confederation, while being part of the legal history of the United States, have no bearing on “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…”

#31

A declaration of independence under the tenth amendment, as discussed earlier, would have to come from the legislature, or the governor, with consent of the people.

We must now consider how this declaration should be worded. Since peaceful separation has not been considered for over 100 years, and the last attempt at peaceful separation ended up not so peaceful, we are in essentially uncharted territory. There would have to be a lot of intensive discussion of the wording of such a declaration. What follows are my own thoughts on the subject.

The wording would have to be concise and simple. Perhaps “New Hampshire peacefully withdraws from the legal jurisdiction of the United States, as defined in Article VI of the United States constitution,”

This would not only declare independence, but would nullify any sections of the New Hampshire constitution, laws, and regulations that refer to legal jurisdiction of the United States. It would automatically remove US senators and representatives from the US congress, and would also remove other elected or appointed officials from New Hampshire working at the federal level.

State sovereignty would become national sovereignty, in all matters.

Such a declaration would not renounce the American citizenship of any individuals living in New Hampshire. Each individual would have to make a decision as to whether or not to renounce their U.S. citizenship. There should be no problem with American citizens living in the sovereign nation of New Hampshire. American citizens live and work in many places outside the United States.

Members of the military resident in New Hampshire would still be members of the United States military.

The greatest effect would be that federal law enforcement officers would now be outside their jurisdiction. This would also affect customs officials at the Canadian border.

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#32

it’s all too detailed for me but I’m glad you’re working on it

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#33

Phase 2 Implementation of independence

Declaring independence is very different from being able to implement it.
If everything goes smoothly, there should be no problems.
Below is a list of a few things I have thought about:

  1. Federal customs officers on the Canadian border would have to either resign, or transfer their services to perhaps one of the additional U.S border crossings that would have to be established along the borders with Vermont, Massachusetts, and Maine. Any of them that are New Hampshire residents could then re-enlist under the auspices of Concord rather than Washington. Their experience with border issues would be invaluable.
  2. Any federal TSA agents working in any civilian airport would be in a position similar to the customs officers on the border. One big difference is that if U.S. or other laws require certain security measures at the origin of a flight before they could land at their destination, these things would need to be considered. Proper security might be managed by security personnel hired by the airport.
  3. All federal inspectors, customs officials, etc. on duty at sea ports would be in the same position as border customs officials and TSA agents.
  4. The U.S. military would go on as usual.
  5. One of the most important things is that businesses, especially large businesses that have establishments both inside and outside of New Hampshire, accept the separation and sovereignty of New Hampshire. It would affect payroll deductions, including things like income taxes paid to the United States, Medicare and other Social Security deductions, and any other payroll deductions.Occupancy permits, licenses, and the like, issued by New Hampshire would remain the same, at least for a while.Many of the payroll deductions that had been going to the federal government would probably be remain as New Hampshire payroll deductions of the same type. I will be starting a new topic to discuss the economics of New Hampshire seceding, but not for at least a couple of weeks.
  6. U.S. senators/representative/congressmen/congresswomen from New Hampshire would have to vacate their seats in Washington.
  7. Border crossings by U.S. citizens carrying U.S. passports should have no problem, but others might have a problem; arrangements would have to made for persons crossing borders on a daily basis for education, work, or other purposes.
  8. I’m sure that there are many other important issues that would have to resolved immediately or nearly so.
#34

If things do NOT go smoothly, and the United States does not accept the secession, then things could get sticky.

It is likely, I think, that there would be preparation on the part of the United States government, ahead of the popular vote on independence. On voting day, and possibly a day or two before, the border with Canada would probably be closed or severely restricted. Military installations would probably go on alert, and all reservists, National Guard, and others that might be under the command of the president of the United States as commander-in-chief would likely be called to active duty. While technically the National Guard must be activated by the governor, I suspect that the U.S. president would temporarily exert his/her authority over them. Some businesses would likely be closed by federal agents. Additional military troops might be moved into New Hampshire, or stationed just outside the state ready to come in if the popular vote is for independence.

It is absolutely imperative that under such conditions no one resorts to any violence or overwhelming forceful interference of any kind with what the United States will consider lawful prosecution of their duties. If the U.S. does not exert authority over the National Guard, the governor should not activate the National Guard. Any kind of forceful interference, armed or unarmed, would be understood by the United States as one or more of the various offenses detailed under 18 USC 115: treason, misprision of treason, rebellion or insurrection, seditious conspiracy, advocating overthrow of government.

If the United States continues to claim legal jurisdiction, and considers New Hampshire to be still a state, then the U.S. would have to accept the fact that the U.S. Supreme Court has original jurisdiction to decide the issue. New Hampshire would then have to file the proper paperwork to request a hearing from the Supreme Court. [If the case was an appeal from a lower court, that paperwork would be called a petition for certiorari. I’m not sure what it would be called in cases where the Supreme Court has original jurisdiction.] I suspect that the court would accept a petition for emergency hearing.

All of the legal arguments put forth in this thread, and perhaps others as well, would come into play. If the decision comes out against New Hampshire, if any show of force had been shown by people or officers of the State of New Hampshire, this might lead to a multitude of serious charges based on constitutional and US code violations.

Other states across the country might put their militias on alert, supporting either the U.S. or New Hampshire. In the long run, in an attempt to prevent nationwide civil war, the United States would likely back down.

#35

Thus ends my analysis.

I’m going to take a few weeks, or perhaps months, off from these posts. I intend to write up everything posted since I posted the “Detailed analysis” file. It will be expanded to include quotes from the Federalists in New England, Massachusetts Senator Timothy Pickering, John Quincy Adams, Alexander Hamilton, Oliver Ellsworth, and many others. It will essentially be a kind of history of the concept of secession in America. I will then post that file here.

At some point I will do an analysis of the economics of secession. There were questions at the CACR-32 committee hearing about things like social security and whether or not New Hampshire could succeed economically on its own.

For now, thank you for listening, see you later.

#36

Today I have been listening to the NHExit podcasts, which I have not really listened to before. In podcast #5, the issue of other nations (in this discussion it was China) simply picking us off because we would be such a small nation.

I refer you to the post to which this is a reply:
“4. The U.S. military would on as usual.”

While it might be true that other nations, like China, would attempt to invade, or take over in other ways, with New Hampshire, they would have to come into New Hampshire through the United States (or maybe Canada, I suppose), or use the airspace over the United States in the case of combat aircraft or missiles.

In addition, the invasion would have to deal with the military installations of all kinds that would still be operative in New Hampshire.

I refer you now to Cuban Missile Crisis under John F. Kennedy. Do you really think that the United States is going to allow any enemy military forces that close to their military installations?

#37

are you putting this in a document we could post or send out later?

#38

I will be, but it might take a couple of weeks, as I said above:
“I’m going to take a few weeks, or perhaps months, off from
these posts. I intend to write up everything posted since I
posted the “Detailed analysis” file. It will be expanded to
include quotes from the Federalists in New England,
Massachusetts Senator Timothy Pickering, John Quincy
Adams, Alexander Hamilton, Oliver Ellsworth, and many
others. It will essentially be a kind of history of the concept
of secession in America. I will then post that file here.”

I’m working on that now.

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#39

I’ve had second thoughts about posting this stuff. I am grateful for your interest in this material, so I will upload a file called “Secession in the United States”, which is just my original OpenOffice file… I usually just cut and pasted the material from that onto the post here.

Secession in the United States.odt (25.8 KB)

I will later post a more comprehensive history of secession in the United States, as I have said.

#40

Stirring words from John Quincy Adams. The emphasis is mine.

"With these qualifications, we may admit the same right
as vested in the people of every state in the Union,
with reference to the General Government, which was
exercised by the people of the United Colonies, with
reference to the Supreme head of the British empire,
of which they formed a part – and under these limitations,
have the people of each state in the Union a right to
secede from the confederated Union itself.

Thus stands the RIGHT. But the indissoluble link of union
between the people of the several states of this confederated
nation, is after all, not in the right, but in the heart. If the
day should ever come, (may Heaven avert it,) when the
affections of the people of these states shall be alienated
from each other; when the fraternal spirit shall give away
to cold indifference, or collisions of interest shall fester into
hatred, the bands of political association will not long hold
together parties no longer attracted by the magnetism of
conciliated interests and kindly sympathies; and far better
will it be for the people of the disunited states, to part in
friendship from each other, than to be held together by
constraint. Then will be the time for reverting to the
precedents which occurred at the formation and adoption
of the Constitution, to form again a more perfect union,
by dissolving that which could no longer bind, and to leave
the separated parts to be reunited by the law of political
gravitation to the centre."