Divorce American Style

A House Divided Against Itself Cannot Stand

Julie and John Gottman, of The Gottman Institute, are renowned therapists specializing in couples’ therapy. One of their areas of research focuses on second marriages where they report that these marriages fail at a rate of over 60% compared to 50% for first-timers.¹ The failure rate for third marriages is even more dismal. Please indulge me here. Hopefully it will all come together in the end.

I mention this because once upon a time a group of colonists divorced themselves from their unhappy marriage to the British King George. This breakup has been historically known everywhere as the American Revolution. Call it what you want, but it is more accurately described as a divorce. A common synonym for a divorce is disunion. There are others that are similar. Separate. Detach. And, another is secession. After divorcing the King these colonies banded together and committed themselves to a new union. How did that go? Stay with me.

Secession is mostly known to Americans as describing what occurred on December 20, 1860, when South Carolina convened a convention of secession that repealed its previous adoption of the United States Constitution. At the convention South Carolina declared, “that the union now subsisting between South Carolina and other States, under the name of ‘The United States of America,’ is hereby dissolved.” Easy peasy. After declaring its secession from the Union, a few days later South Carolina explained its reasons for the divorce in the Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union. Today the divorcing party often cites “irreconcilable differences.” On December 24, 1860, the South Carolina secession convention ascribed several reasons. But the straw that broke the proverbial camel’s back was:

“The General Government, as the common agent, passed laws to carry into effect these stipulations of the States. For many years these laws were executed. But an increasing hostility on the part of the non-slaveholding States to the institution of slavery, has led to a disregard of their obligations, and the laws of the General Government have ceased to effect the objects of the Constitution.”

It was a flowery way of justifying divorce on the basis that the North and President Lincoln were opposed to slavery, something South Carolinians believed was an institution the “General Government” should have obliged. South Carolina’s act of secession could have been early support for the Gottman’s research more than a 100 years later.

A bloody Civil War followed where more than 700,000 Americans died, or 7,000,000 in today’s population. The war ended at Appomattox on April 9, 1865, not because any minds were changed on the issue of slavery, but only because General Lee tipped over his King acknowledging that the Army of Northern Virginia was checkmated by General Grant. There was no escape. In Lee’s final address to his soldiers he acknowledged his defeat and surrender saying, “I have determined to avoid the useless sacrifice of those whose past services have endeared them to their countrymen.” ²

Lee’s surrender of his army did not technically end all fighting and the war. Other Confederate forces dispersed around the South surrendered over the following weeks with the the Cherokee, Creek, Seminole, and Osage Battalion, led by Confederate General Stand Watie, being the last to surrender on June 23.³ With Watie’s surrender restoration of the Union began. Or that was the intent.

The second marriage - known as Reconstruction - could generously be described as a shotgun marriage. Instead of the pregnant bride’s father forcing a reluctant groom to marry his daughter by the barrel of a shotgun, the former Confederate states were divided into military districts, occupied and ruled by the United States military. Congress passed Reconstruction Acts which set the conditions for readmission which included ratification of the 13th, 14th, and 15th Amendments to the Constitution, abolishing slavery, establishing citizenship to former slaves, equal protection under the laws and voting protections. In addition, the states had to establish new constitutions that, among other matters, guaranteed former slaves the right to vote and hold office, while barring former Confederate officials from holding public office. By 1870 all former Confederate states were readmitted and Reconstruction and military rule ended.

In my previous post, Democracy is a Math problem, I describe in greater detail the end of Reconstruction, the ensuing era of Jim Crow laws, the reign of terror against Blacks mostly in the South, and the deprivation and now complete erosion of their right to vote, that has brought America to where we are today. How has this second marriage worked, thus far? Not so well for at least half of Americans.

It should be easy to see that we are not living in a unique and ahistorical time. The restoration of Trump 2.0, along with its unconstitutional and destructive acts, is not something completely new in our history. After all, there were the initial constitutional comprises that perpetuated the original sin of slavery that resulted in a Civil War and a still unrepaired and ongoing small “c” and “w” civil war. Only this time we haven’t yet brought arms against each other. But we are and have been for years unmistakably in the midst of a war of profound competing ideas not unlike all of the political and armed battles⁴ that roiled America in the decades leading up to the Civil War.

When Lincoln was elected as the 16th President in November 1860 seven southern states had seceded. By the time of his inauguration on March 4, 1861, four states had left as well. In his first inaugural address, Lincoln declared this about secession:

“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 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. … I therefore consider that in view of the Constitution and the laws the Union is unbroken, and to the extent of my ability, I shall take care, as the Constitution itself expressly enjoins upon me, that the laws of the Union be faithfully executed in all the States.”⁵

Was Lincoln right? I’m not taking sides with the secessionists in this case. But, there has been from the get-go in 1860 a legitimate debate on whether secession is unconstitutional or not. Many have pointed to Article IV, Section 3, Clause 1 of the Constitution which provides for how states are admitted, while arguing that nothing in the Constitution expressly prohibits secession.In January 1861 southern senators led by Jefferson Davis resigned from the Senate. The debate then was whether to leave their seats “vacant” for those who believed there was no right to secede, or to hold that their seats no longer existed for those who believed there was a right to secede. This debate as to the right to secede was held between northern senators.⁶ So, secession clearly was not a settled issue even among northern senators.

In 1869, after the Civil war, the Supreme Court in Texas v. White held that a state could not secede unilaterally and the Union was “indestructible.” ⁷Others at the time and since have argued that secession, even if constitutionally constrained, is a “natural right” of man.

The Dubuque Herald wrote in November 1860:

“So, if the rights of the people of the United States as recognized by the Constitution, are not secured to them by the Government, and the people of any State have no other means to redress their grievances except by separating themselves from their oppressors, it is their undoubted natural right to do so. …. What then is the South to do[?] Suffer the compact which brought them into the Union to be violated with impunity, and without means of redress; submit to incursions into their territory and trespass upon their property by northern abolitionists[?] Look on submissively upon every aggression upon their domestic institutions[?] Who expects, who desires the South to submit to all this? The South will not do it. The South ought not to do it.” ⁸

The debate has not quieted in the intervening years. On the contrary, talk of secession has ramped up. Since its admission to the Union in 1850, there have been more than 220 proposals to partition California, mostly having to do with dividing, or partitioning, between Northern and Southern California. Currently in California, and riffing on Brexit, there is a Calexit movement seeking to secede from the Union. If the ballot initiative can get 546,651 signatures by July 22, 2025, the secession question will be on the ballot in 2028.⁹ If it passes, secession will not be automatic. Instead, a commission will be established to explore the viability of secession. Most other state movements have involved partitioning of counties and geographical areas from the existing state. In 1969 writer Norman Mailer ran for New York City mayor on the platform of seceding from New York state and becoming the 51st state. But partition is different than secession. The former generally seeks to add by division to the Union, while the later is pure subtraction.

For now the question of whether secession is legal and not unconstitutional is still not completely answered, and the question for the perilous moment remains; why not try? In Fault Lines: An Empirical Legal Study of California Secession (Tomlinson, Bill & Torrance, Andrew, 2020), published in The Seattle Journal of Technology, Environmental & Innovation Law , the authors did an empirical study of 100 respondents, half from California, that parsed out the arguments for and against secession by California, and reviewed peaceful historical precedents for secession in other countries.¹⁰ While the authors did not conclude in favor or against, they discussed the numerous logistical, social, economic, technological and political impacts - good and bad - that California seceding would have on the country and the world and wrote:

“While California is only one part of one nation, it is nevertheless a powerful presence on the global stage. California is the fifth largest economy in the world,86 and, therefore, has an outsized and important economic standing around the globe. As the saying goes: “As California goes, so goes the nation.”87 The magnitude of ripple effects that would follow a California secession could be substantial. Secession would shift alliances among California, the rest of the U.S., and many other countries. It would likely lead to greater polarization between California and the rest of the U.S. Ultimately, it would lead to profound shifts in how the technological, agricultural, entertainment, and other industries adapt as California separates from the U.S.”¹¹

Perhaps the best argument for secession now was published last week in Bloomberg Law by Judge Nancy Gertner, Ret., and law school deans Erwin Chemerinsky and David Faigman in, Trump Discriminating Against Blue States Sets Up Historic Crisis.¹² Judge Gertner et al. argue that Trump is targeting blue states in his administration’s purge and destruction of federal government support and services. They detail the funding cutoffs: “President Donald Trump’s funding cutoff is discriminating among the states, punishing blue states and rewarding red states—plainly violating the Constitution and risking political disaster.” Trump’s actions are unconstitutional, they argue, because Chief Justice Roberts wrote in 2013 in Shelby County v. Holder that there is a “‘fundamental principle of equal sovereignty’ among the States,” meaning that the states should be treated equally.¹³

I want to make clear that Judge Gertner and the Deans are not advocating secession or a federal tax boycott by blue states. But they do conclude that we are at a dangerous precipice and write:

“Federal government discrimination toward disfavored states will make citizens wonder whether the benefits of remaining in the union outweigh the costs. There is already an effort for a ballot measure in California asking voters to endorse the idea of secession.

The prospect of a serious secession movement, however unlikely it is to succeed, is frightening. And the fact that voters in one of the most powerful states in the Union are broaching the discussion should force everyone to sit up and consider the risks at hand.

The Constitution is a compact between the people of these United States and our government. It imparts the responsibility on the national government to allocate resources fairly between the states.

A systematic move to punish blue states because they are “disloyal,” or for other capricious reasons, would breach that compact and would put us on a path of grievous harm to this great country and all within it.

Lincoln said, “the central idea of secession is the essence of anarchy.”
He also famously said that ‘A house divided against itself cannot stand.’”¹⁴

Maybe this second marriage between Americans of disparate natures and beliefs is simply irreconcilable. But living in a country ruled by a King is absolutely untenable. Something has to and will break. It is ultimately up to all of us - the governed - to decide. And we should do so soon before it is too late.

1. https://www.gottman.com/blog/10-rules-successful-second-marriage/.

2. https://encyclopediavirginia.org/entries/appomattox-surrender-at/.

3. Id.

4. Politically there were fights and increasing tensions between the North and South over the expansion of slavery into new territories and states. The Missouri Compromise of 1820 permitted Maine to be admitted as a free state and Missouri as a slave state. Later, the Kansas-Nebraska Act of 1854 allowed the settlers there to decide by popular vote whether to allow or outlaw slavery. This led to violent conflicts that tried to influence the voters known as “Bleeding Kansas” where some 60 people died. The abolitionist John Brown and his sons and followers killed pro-slavery proponents there. Brown fled and reassembled in Virginia for his infamous raid on the Harpers Ferry military arsenal in the hopes of arming and igniting a slave rebellion. His raid was repelled and Brown was captured by U.S. Marines led by Colonel Robert E. Lee. Brown and his raiders were tried and their hangings were witnessed by hundreds including John Wilkes Booth. You can’t make this stuff up.https://civilwaronthewesternborder.org/articles/bleeding-kansas-kansas-nebraska-act-harpers-ferry.

5. https://avalon.law.yale.edu/19th_century/lincoln1.asp.

6. https://www.senate.gov/about/powers-procedures/expulsion/CivilWar_Expulsion.htm.

7. The facts of the case had little to do with the larger issue of secession. It concerned whether bonds issued by the United States government to Texas in settlement of a border dispute belonged to the Confederate government of Texas or the legally constituted/non-secessionist government of Texas. Nonetheless, it has long been cited as dispositive by those who believe there is no right to secession.

8. https://www.historians.org/sixteen-months/can-a-state-constitutionally-secede/.

9. https://www.cbsnews.com/sanfrancisco/news/calexit-2028-ballot-measure-marcus-ruiz-evans-says-movement-gaining-traction/.

10. https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1010&context=sjteil.

11. Id.

12. https: //news.bloomberglaw.com/us-law-week/trump-discriminating-against-blue-states-sets-up-historic-crisis.

13. Roberts wrote this in holding that Section 4 of the Voting Rights Act was unconstitutional because it targeted for preclearance of voting changes only certain states that had a history of racial discrimination in their voting practices. What great karma would there be if Roberts’ death knell rationalization to the Voting Rights Act would be used as legal support for secession.

14. Id.