Legal Briefings: Seeking an unconstitutional remedy to cure unconstitutional activity

OPINION – The White House has now received secession petitions from all 50 states in the post-election fallout and disappointment over the re-election of President Obama.  Presumably, these petitions are a means of lashing out against the president’s first-term policies, which are seen by many conservatives and Republicans as unconstitutional.

The submitted secession petitions, which retaliate against perceived unconstitutional activity on the part of the president, can and must be scrutinized for constitutionality. I have serious concerns about whether or not the president of the United States can (or should) even constitutionally grant such a petition. Said another way, it seems that these secession petitions that are filed in response to unconstitutional activity by the president are seeking for additional unconstitutional action by the president as a remedy.

Honestly, what does it say about the state of our nation and its citizenry when petitions to secede are directed at the very source of the reason for wanting to secede? How has the power of the presidency become a perceived source of ultimate authority similar to a monarch? Clearly, the executive branch has gradually aggrandized more power to itself over the last century and functions more and more with unchecked power. (Czars and administrative agencies too long to list come to mind.) But what ever happened to directing petitions toward local elected individuals from the several states?

The Constitution remains silent on the issue of secession, but the Declaration of Independence declares that “governments long established should not be changed for light and transient causes;” instead, “a long train of abuses and usurpations” is required before a change through revolution is instituted. Shortly after the Civil War, the U.S. Supreme Court considered the constitutionality of secession in the decision of Texas v. White. In that decision, the court ruled that the Confederate states had never actually and legally left the Union, and mentioned two distinct and presumably constitutional avenues for a state to secede: revolution or consent of the states.

In some ways, this phrase, “consent of the states,” is vague and leaves open a host of unanswered questions. For example, how is this consent obtained? Is it via a convention or a ballot initiative? How many states must consent? Who speaks for the states; the governors, legislatures, or the elected officials in Congress?

This list could go on and on, but the much larger and pressing question remains:  Why are disenfranchised, disappointed, and downright angry voters not turning to their states and local representatives for political recourse and instead turning to the very source of their perceived problems in the entire nation’s president?

It is almost as if citizens (many of us) are accepting the false premise that the so-called power of the presidency mandates that such petitions be directed to the White House as if it were the King’s castle. This is a mistake. Nowhere does the Constitution grant the office of the president such authority; indeed, it would be alarming if a president were allowed to assume such authority.

Directing secession petitions to the White House only fuels the ego of a federal executive branch that is already far too powerful. In effect, these petitions seek an unconstitutional remedy in an effort to cure unconstitutional activity. If there are long and genuine trains of abuses against us as citizens, it seems more prudent for us to turn to our states for relief, as the U.S. Supreme Court has already wisely recognized. If there were such abuses and our elected state officials refused to act and attempt to obtain the “consent of the states,” then it would be much easier to strip them of their positions at the polling booth on election day. Perhaps it is time to focus our frustrations at the state and demand exacting accountability to their constituents instead of a federal government (the executive branch) that will use such demands as an additional means to expand its seemingly unfettered power.

Author:  Trevor C. Sanders, Esq.

Trevor C. Sanders is an attorney at Aaron J. Prisbrey, P.C. and a resident of Hurricane. He can be contacted with questions, comments, or concerns at:

Email: [email protected]

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Twitter: @STGnews

Copyright St. George News, LLC, 2012, all rights reserved.

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  • Wanda November 21, 2012 at 8:35 pm

    That is the ugliest court building! Why didn’t they plant large trees in its corners, particularly evergreen trees like live oaks, to soften the cold appeal? Yuck!

  • Karen November 22, 2012 at 11:19 am

    The writer of this piece asks, “Honestly, what does it say about the state of our nation and its citizenry when petitions to secede are directed at the very source of the reason for wanting to secede?” The answer is simple. The signers of the petitions are just plain lazy. It has nothing to do with the state of the nation or the Constitution.

    We the People is a section of the website, launched September 22, 2011 for petitioning the current administration’s policy experts. Petitions that meet a certain threshold of signatures will be reviewed by officials in the Administration and an official response will be issued.

    People who are upset about the election of 2012 are just using the website to spout their secession nonsense. It is pretty simple to start or add a name to any petition on the website. It is just another silly way for them to vent.

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