Nearly 30 years ago I wrote in a book that Western civilization was at “a momentous turning point” as it came to the close of the modern era (1500-2000) and that future historians might well mark “a new age beginning somewhere within our lifetimes.”   

Two choices faced us, I said. “It could be an age of bigness, continuing certain obvious trends of the present toward large-scale institutions, multinational corporations, centralized governments, high-technology machinery, large cities, high-rise buildings, and all that is implied in the American ethic of unimpeded growth.   

“That would seem to have to entail the expansion of the present corporate-government alliance, leading to a fully mixed system of state and private capitalism, government regulation of scarce resources, increased corporate conglomeration, some greater degree of social regulation by the organs of government, further consolidation of political power within the executive branch, and corporate-government encouragement of the arts.  Allowing, as always, for a few pockets of discontent, big would be better, progress our most important product.”   

But there was another possibility for the new age ahead, I said, in exactly the opposite direction: “toward the decentralization of institutions and the devolution of power, with the slow dismantling of all the large-scale systems that, one way or another, have created or perpetuated the current crises, and their replacement by smaller, more controllable, more efficient, people-sized units, rooted in local circumstances and guided by local citizens.   

“In short, the human-scale alternative.”   

Well, I have to tell you that so far a lot of the signs point to the big-is-better future, and the latest round of Obamofascism would seem to guarantee that.  Except.  Except that even as this Empire gets bigger, more militaristic, more intrusive into individual and community life, more in thrall to the corporate-financial megalith, and more desperately mired in debt, deficit, and dollar-debacle, a new and strong counter-trend has emerged.   

Triggered by a few careless words by Texas Governor Rick Perry at the “tea party” protest in Austin on April 15 (“We live in a great country . . . and I see no reason at all for us to be even talking about seceding, but if Washington continues to force these programs on the states, if Washington continues to disregard the Tenth Amendment, who knows what happens?”), the idea of secession has hit American politics with a bang.  Mostly voiced these days by Republicans appalled at the way Obama and Co. have saddled the nation with an immense debt and a union with the completely corrupt financial world, it is also a tactic that many in the libertarian camp, including Representative Ron Paul, have considered in the past and are now reviving. Add to those the people on the decentralist Left who have long denounced government interference and corporate malfeasance, promoting localized and communitarian projects and solutions, and the camp of people taking secession seriously is great enough potentially to have a real political impact.   

In fact, Donald Livingston, the distinguished scholar of secession at Emory University, has said that now is the first time that it has been a genuine subject in U.S. public discourse since the war of Southern Independence was ended in 1865.

And, as if in support, the New York Times ran a story in April with the headline “Secession Talk Stirs Furor.”   

That same Times story, trying to dampen talk of the practicality of secession as the mainstream liberals are wont to do, said that there has been “no serious argument since the Civil War [sic – it was a war of independence, just like the one of 1776, with no intent of taking over another’s power] on behalf of a legal basis for a state’s secession.”     

Completely wrong.    

Puerto Rico has had separatist movements since the 1930s and a Puerto Rico Independence Party has been in business since 1947.   Hawaiians have been talking of sovereignty and regaining their Hawaiian Kingdom at least since the 1970s. Alaskans have been talking of it since 1974, and in 1990 actually elected a governor on the Alaskan Independence Party ticket (who proceeded to do nothing about it for four years).    

On the serious side, 10 scholars who had written on secession since the 1980s were brought together in 1997 by David Gordon to present a series of scholarly arguments for secession, gathered as Secession, State, and Liberty (Transaction, 1998, 2002).  Many of the contributors to that volume, notably Livingston, Clyde Wilson, and Thomas diLorenzo, have subsequently written a number of articles laying out the legitimacy and legality of secession.  There are also scholarly books on the legality of secession from Alan Buchanan (Secession, Westview, 1991), Charles Adams (When in the Course of Human Events, Rowman, 2000), and Christopher Wellman (A Theory of Secession, Cambridge, 2005), among others.   

This last tome is an elegant argument that, in essence, “any group has a moral right to secede as long as its political divorce will leave it and the remainder state in a position to perform the requisite political functions.”     

Simple enough. 

So what’s all the fuss about there being no “legal basis” for secession, about it being “unconstitutional” and “treasonous” and the like?  It is nothing more than the tommyrot of the brainwashed American patriot, usually of the liberal Lincolnesque “I-defend-the-wonderful-government” stripe.   

Secession can’t be illegal, since there are no federal laws against it.  There is, to be sure, a Supreme Court decision from 1869, decided not long after the heat of battle and with no guise of impartiality, which said that Texas was never a part of the Confederacy because it could not leave the union it had joined, but the argument is entirely circular and specious.  Besides, the decision does not make secession specifically illegal, only, in the judicial fiction this court was living in, impossible.  Moreover, the U.S. Congress debated in 1861 whether to make it illegal – meaning that until then it wasn’t – and failed to pass any such statute.   

Secession can’t be unconstitutional, since the Constitution says nothing about it whatsoever, it having been an assumed right by the founders that needn’t be spelled out. In fact three states ratifying the Constitution in 1789 – New York, Rhode Island, and Virginia – made the right to secede specific before they would join the U.S. republic, but the other 10 states assumed they had the same right.   

Secession can’t be treasonous, since it has been achieved peaceably four times in American history: Maine seceded from Massachusetts, Kentucky from Virginia, Tennessee from North Carolina, and West Virginia from Virginia. No one at the time thought that this was doing damage to the United States or represented an act of treason.  Besides, treason is defined in the Constitution as consisting “only in levying Ware against” the U.S., and if a state departs peaceably, saying good-bye with no shots fired, it can’t be treasonous.   

So whatever happens as a result of this remarkable new discussion, we can hope that it convinces the larger part of the citizenry that secession is at least a political alternative to be considered seriously – particularly in those states where federal laws and regulations are felt to be intrusive and unjust and federal practices in defense of the empire are regarded as illegal and immoral.  What’s more, we can hope that it is the beginning of a movement away from the growing power of the imperial mega-state and toward that possible decentralist future built upon the human-scale alternative.

Kirkpatrick Sale, editor-at-large and author of a dozen books, including After Eden: The Evolution of Human Domination (Duke), is the director of the Middlebury Institute.