Farber discusses Texan secession

Berkeley law professor Dan Farber speaks about the constitutionality of secession at a talk Tuesday night called "A Constitutional Conversation with Dan Farber: Why Rick Perry is Wrong About Secession and What the Answers Imply About Federal Power" (IAN GARCIA-DOTY/The Stanford Daily)

In Tuesday’s talk titled “A Constitutional Conversation with Dan Farber: Why Rick Perry is Wrong About Secession and What the Answers Imply About Federal Power,” Farber, professor of law at the University of California, Berkeley, gave a definitive answer to the question, “Does any state have the right to secede?”.

The lecture, sponsored by the Stanford Constitutional Law Center, addresses a question that has been revisited in recent months because of the presidential campaign of Governor Perry, who said in a 2009 speech at a Tea Party rally, “Texas is a unique place. When we came in the union in 1845, one of the issues was that we would be able to leave if we decided to do that.”

He continued by saying, “We’ve got a great union…but if Washington continues to thumb their [sic] nose at the American people, who knows what may come out of that?”

The answer, according to Farber, is definitely not a legal secession from the United States. Farber believes that the founders of the Constitution did not intend for the union to be so loose as to allow for a legal right to secede, a right the South claimed during the Civil War, if only because they gave the federal government too much power to assume the states were sovereign. In his mind, however, the issue wasn’t made completely clear until the Fourteenth Amendment to the Constitution was established.

In his paper, “The 14th Amendment and the Unconstitutionality of Secession,” on which his talk was based, Farber wrote that the 14th Amendment means “no state can deprive any American citizen of the privileges or immunities of citizenship — which means that a state, for example, cannot deprive a citizen of U.S. citizenship by seceding.”

Farber also briefly addressed another popular claim that Texas has the special right to break itself into five different states. In fact, Texas does have this right, but Farber doubted it would ever happen “because they would all want to be called Texas.” He also doubted that the Constitutional “equal footing” doctrine, stating that the states must have equal legal rights, would allow for a split, but admitted it is possible.

Rick Perry has since backed away from any talk of secession, going so far as to address it specifically on Fox News last week. While not an issue of national immediacy, the potential for secession has been something of a rallying cry for the Tea Party in Texas.

Farber, who was introduced as a “big-D democrat,” joked that perhaps this outcome is not so bad.

After all “if you can secede you can also be expelled,” he concluded.