Here’s the U.S. Constitution (1789).
Take a quick peruse. It’s rather short, about 10 pages. It’s the supreme law of the land. But it only gives the federal government limited powers, with the states having the real power.
This is “federalism.”
Note Article 1, Section 8: Powers of Congress. There’s 17. If what the feds are doing is not one of these 17, then only the states can do it. Or it’s an individual right, and no government can do it.
America is a Republic more than a Democracy. Article IV (States), Section 4 guarantees a “Republic” for each state. A Republic is limited by a Constitution that guarantees individual rights, whereas a pure democracy is majority makes right, or “mobocracy,” where minorities can suffer from the tyranny of the majority. “Democracy” is not in the Constitution, but “Republic” is.
Note the 9th and 10th Amendments, the forgotten part of the Bill of Rights, reserving rights to states and individuals. This means they have the power, not the feds. States and individuals have jurisdiction unless it’s enumerated as a proper function of the federal government. And whether individuals have the rights, or the state, depends on each state’s individual constitution.
The U.S. Constitution and its Amendments provide a baseline of individual rights that even the states can’t transgress. Otherwise, states are free to differ from the feds, and can even be more protective of individual rights.
So a state could secede from the Union, but not if it’s violating individual rights. The North’s victory in the Civil War — and the 14th Amendment -saw to this. But peaceful, law-abiding secession is legal.
In addition to the three branches of government (separation of powers), state’s rights, or “state enforcement,” is a fourth check on the power of government. States can even nullify federal laws that are deemed unconstitutional. Montana’s new gun law may test this.
Croatia & Slovenia (former Yugoslavia) and many former Soviet states peacefully seceded. It’s merely civil divorce and probably shouldn’t be so controversial. The U.S. could legally secede from the UN if it wanted.
Note that Congress’ power is in Article I, the President’s in Article II. This is because Congress was meant to have more power than the President. Federalism, along with being a republic more than a democracy, and Congress superseding the President, is what America’s Constitution is all about.
Jeff E. Jared is a Kirkland resident and attorney.