Opting Out: Sovereignty, Decentralism and the Secessionist Impulse

By Greg Guma

Editor’s Note: This essay is adapted from the forthcoming book, “Green Mountain Politics: Restless Spirits, Popular Movements.”

The idea of defying the forces of centralized power and wealth can be seductive, especially if you live in a small, isolated place with a reputation for being contrary and the sense that it’s different, even exceptional.

In Congress, Vermont’s Bernie Sanders has reflected this perspective, challenging corporate secrecy and the powers of international financial institutions by forging alliances that cross traditional lines. When that strategy was attempted in Vermont during the late 1970s, the two ends of the political spectrum also found common ground, in that instance by embracing decentralism. Both sides discovered that they agreed on a preference for small scale energy production to mega-plants, widespread ownership of land and business, and removal of “government barriers.”

Things became complicated, however, when the discussion shifted to welfare, environmental regulation, affirmative action, and abortion – none of these easy topics. The difficulty was that the same arguments for decentralization and sovereignty that sounded progressive in some cases could be used in support of isolationism, unfettered capitalism and discrimination.

In 2003, as former Vermont Governor Howard Dean was running for president, former Duke University professor Thomas Naylor launched a related but more ambitious movement, the Second Vermont Republic. Its aim was to dissolve the United States and, in particular, to return Vermont “to its status as an independent republic.” Lincoln had persuaded the public that secession was unconstitutional and immoral, Naylor argued. “It’s one of the few things that the left and right agree on. We say it’s constitutional – and ultimately it is a question of political will: the will of the people of Vermont versus the will of the government to stop us.”

Historian Frank Bryan, whose 1989 book with Republican thinker John McClaughry called for restructuring the state’s democracy along decentralist lines, has argued that “the cachet of secession would make the new republic a magnet" and "people would obviously relish coming to the Republic of Vermont, the Switzerland of North America.”

Naylor said the question wasn’t “if” but “when.”

Vermont attorney and historian Paul Gillies was skeptical, “It doesn’t make economic sense, it doesn’t make political sense, it doesn’t make historical sense,” he said. “Other than that, it’s a good idea.” And Vermont archivist Gregory Sanford claimed that some of the arguments for secession, in Vermont at least, were based on “historical facts of dubious reputation.” The State Archives often receive requests for copies of an “escape clause” in the Vermont Constitution, which supposedly allows Vermont to withdraw from the US.

“The truth, drawn from documents, is less satisfying; there is no, nor has there ever been, such an escape clause,” Sanford asserted.

Still, the underlying issue isn’t whether there is legal authority, but why millions of people across the country consider secession a reasonable and attractive idea. A 2008 Zogby poll commissioned by the Middlebury Institute, a think tank studying “separatism, secession, and self-determination,” indicated that that 20 percent of Americans thought “any state or region has the right to peaceably secede from the United States and become an independent republic.”

More than 18 percent told pollsters that they “would support a secessionist effort in my state.”

Leaving the Empire

In Vermont, the argument has been “that the US has become an empire that is essentially ungovernable – it’s too big, it’s too corrupt and it no longer serves the needs of its citizens,” according to Rob Williams, editor of Vermont Commons, a publication that emerged to cover secession and related issues. “Congress and the executive branch are being run by the multinationals. We have electoral fraud, rampant corporate corruption, a culture of militarism and war. If you care about democracy and self-governance and any kind of representative system,” argue Williams and Naylor, “the only constitutional way to preserve what’s left of the Republic is to peaceably take apart the empire.”

As its history demonstrates, this quirky state has been fertile ground for such “outside the box” thinking in the past. It didn’t immediately join the United States, remaining an independent state for almost 15 years. It was also the first state to ban slavery.

Explicit constitutional authority aside, it came close to separating from the new Union before and during the War of 1812. Between 1809 and 1812, Federalists and other opponents defied national policies, flirting with secret societies, secession and other forms of dissent. In 1813 Vermont elected a governor who rejected the necessity of war. Martin Chittenden’s refusal to let the state's troops defend the lake emboldened the British. In October 1814, although Chittenden stopped short of supporting secession, Vermont delegates were among those who responded to a call by the Massachusetts legislature for a convention in Hartford to consider more extreme options.

Seventeen years later it was the first state to elect an Anti-Mason governor during a period when opposition to elites and secret societies was growing. The Anti-Mason movement lasted only a decade, and most of its members eventually joined either the short-lived Whig Party or the more durable Republicans. But along the way it expressed an emerging anti-monopoly philosophy and, on a practical level, initiated changes in the way political parties operated.

This wasn’t the only time a short-lived political movement produced unexpected change in the US. In 1912, the new Progressive Party, formed by Theodore Roosevelt when he lost the Republican nomination to William Howard Taft, led to the election of Woodrow Wilson. Roosevelt soon left his own party, but it continued under the leadership of Robert La Follette. Although La Follette’s run for president in 1924 netted only 17 percent of the vote, he won in his home state of Wisconsin, and successful reforms were implemented there.

Secession advocate Kirkpatrick Sale has described decentralism as a “third way,” evident in bioregional movements, cooperative and worker-owned businesses, land trusts, farmers markets, and a variety of grassroots initiatives. Assessing whether Vermont could “go it alone,” author Bill McKibben has argued that “functional independence would be the proper first step, and useful in its own right.” He also has provided a list of practical projects to help create more food self-sufficiency, energy independence, and local economic power.

On the other hand, the 2008 election of Barack Obama and the global nature of many pressing problems has also convinced McKibben that “any political independence movement is going nowhere now.” Therefore, his advice is modest: to build affection and trust by sharing information and making small but effective moves in the right direction.

Before he died Second Vermont Republic founder Tom Naylor defined secession – or independence, as some supporters of the movement prefer – in idealistic terms, as a rebellion against empire designed to retake control from big institutions and help people care for themselves and others by “decentralizing, downsizing, localizing, demilitarizing, simplifying, and humanizing our lives.”

In some ways, it’s reminiscent of the Decentralist League, which ultimately disbanded when its Left wing opted for electoral politics and its Right signed on for the Reagan “revolution.” In the meantime, however, it did suggest some of what might unite people who find the current national and global order unsustainable and dangerous. Taking aim at centralized power and wealth, it asserted that decentralism is the best way to preserve diversity, increase self-sufficiency, and satisfy human needs.

“Decentralists believe in the progressive dismantling of bureaucratic structures which stifle creativity and spontaneity, and of economic and political institutions which diminish individual and community power,” the League’s Statement of Principles said. The political platform included support for local citizen alliances; widespread ownership of industry by employees; a viable and diverse agricultural base; a decent level of income for all; education that stresses self-reliance, creativity, and a combination of learning and work; technologies that increase energy self-sufficiency; and mediation of disputes rather than reliance on regulations and adversary proceedings.

While promising in theory, its demise underlined the fragility of such a left-right alliance. Similar difficulties have faced the Second Vermont Republic. For the more recent movement the first significant controversy involved an accusation by the Southern Poverty Law Center that Naylor and other Vermont secessionists were talking to an allegedly racist group, the League of the South.

Critics pounced, and Seven Days, the liberal Vermont weekly that was distributing Vermont Commons as an insert, decided to end the arrangement. Labor groups demanded the removal of offensive web links, disassociation from certain groups or individuals, and a statement clearly opposing racism, fascism, bigotry, and discrimination. There was no evidence that Vermont secessionists actually condoned such things, but they were being forced to prove it.

In a 2009 article for Vermont Commons, educator Ron Miller attempted to define the difference between progressive and conservative decentralists. Supporters of Vermont secession are motivated by opposition to war, exploitation, and government violence, he explained. These “liberal decentralists” support equality, human and civil rights, nonviolence and multiculturalism. “Conservative decentralists,” in contrast, are usually free market libertarians who are hostile to cultural change. The former welcomed some aspects of the Obama presidency, the latter viewed it as a deadly threat to liberty and identity.

Left-leaning decentralists face a paradox, Miller argued. Expansion of the federal government had led to social progress in the past, “but always at the cost of siphoning off local, state and regional sovereignty.” There is also the risk that bad leaders will do appalling damage, or that progressive reforms spark such an extreme reaction that civil dialogue is impossible. The federal government hasn’t resolved most conflict, he wrote. It has merely papered over deeply held but divergent values.

The solution he proposed was to have Vermont, or a confederation of progressive states, break away and “become a model of enlightened governance.” What about the conservative, “red” state regions? Since past progressive reforms have failed to transform southern culture or conservative populists he suggested leaving them to “live by the values they prefer.” But that sounded a bit like saying it would be acceptable for almost half the US – or half the world, for that matter – to live under repressive conditions and various forms of fundamentalism.

Sovereignty and Nullification

By 2011 secession organizations were organizing across the United States and a dozen states had active movements. Even more legislatures were debating laws designed to “nullify” federal actions in areas from gun control and health care reform to marijuana possession and overseas troop deployments.

In Alaska, even though the State Supreme Court held in 2006 that secession is illegal, the secessionist Independence Party has influenced state politics. Former Governor Sarah Palin’s husband was a member and she publicly endorsed the party while in office. Hawaii’s sovereignty movement has won small victories, and Georgia’s State Senate passed a resolution in 2009 endorsing the right of states to nullify federal laws. If Congress ever dares to restrict gun rights, that resolution added, the federal government will cease to exist.

In April 2009, Texas Governor Rick Perry directly threatened secession at a protest of the recently launched Tea Party movement. Afterward, a Rasmussen poll of Texans found that almost one third thought the state had the right to secede – although, at that point, only 18 percent actually backed such a move. According to Vermont secession leader Naylor, “Although thirty or so states now have some form of independence movement, in most states it’s all talk and no action. Some so-called secession movements are little more than computer websites.”

At the time he said that Vermont and Texas were the most notable exceptions, Naylor acknowledged. By 2013 Tea Party Republicans in at least seven states were introducing legislation that challenged federal authority or flirted with secession.

A related, larger and predominantly conservative movement has pursed nullification. If the federal government fails to check itself, goes the argument, it’s up to the states to call a halt. This rebellion rests on the theory that the states created the national government. Therefore, they have the right to judge the constitutionality of federal laws and potentially refuse to enforce them. Nullification was used when American Colonists nullified laws imposed by the British. Since then states have used nullification to limit federal actions, from the Fugitive Slave Act to unpopular tariffs.

Vermont had direct and dramatic experience with nullification early in its history. In November 1850 the state legislature approved a so-called Habeas Corpus Law that required officials to assist slaves who made it to the state. The law rendered the Fugitive Slave Act effectively unenforceable. It was a clear case of nullification, a highly controversial concept even then.

Poet John Greenleaf Whittier suggested such tactics, while Virginia governor John B. Floyd warned that this form of resistance could push the South toward secession. President Millard Fillmore threatened to enforce federal law in Vermont through military action if necessary, but nothing happened.

Even earlier, support for nullification emerged in reaction to the Sedition Act and the jailing of Vermont Congressman Matthew Lyon. These two events prompted the Kentucky Resolve of 1798, written by Thomas Jefferson, and the almost identical Virginia Resolve penned by James Madison. In Section One of his version, Jefferson wrote:

“Resolved, that the several States composing the United States of America, are not united on the principles of unlimited submission to their General Government; but that by compact under the style and title of a Constitution for the United States and of amendments thereto, they constituted a General Government for special purposes, delegated to that Government certain definite powers, reserving each State to itself, the residuary mass of right to their own self Government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force . . . . That the Government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that as in all other cases of compact among parties having no common Judge, each party has an equal right to judge for itself, as well as of infractions as of the mode and measure of redress.”

In simple English, this meant that federal authority wasn’t unlimited, and if it went too far government actions need not be obeyed. The national government wasn’t the “final judge” of its own powers, Jefferson suggested, and therefore various states had a right to decide how to handle federal overreach. Madison’s Virginia version declared that, in the case of a deliberate and dangerous abuse of power, states not only had a right to object, they were “duty bound” to stop the “progress of the evil” and maintain their “authorities, rights and liberties.”

Ten years later, after Jefferson enacted a trade embargo as president in response to British maritime theft and kidnapping of sailors, legislatures nullified the law using his own words and arguments. On February 5, 1809, the Massachusetts legislature declared that the embargo was “not legally binding on the citizens of the state” and denounced it as “unjust, oppressive, and unconstitutional.” Eventually, every New England state, as well as Delaware, voted to nullify the embargo act.

In August 2010, the Missouri legislature used similar logic to reject the health care mandate in the Democrat’s health care reform, followed by a flood of legal challenges from state officials. In recent years, several states have also either passed or proposed legislation or constitutional amendments designed to nullify federal laws in the areas of firearms and medical marijuana. Many who support this approach cite the Tenth Amendment to the US Constitution: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Attempts to discredit nullification as a tactic by branding its leaders extremists, wingnuts and “tenthers” hasn’t dissuaded them. On the contrary, several state legislatures have introduced 10th Amendment resolutions that serve “Notice and Demand to the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers.”

Nullification advocates can point to some limited successes. After the REAL ID act was signed by President Bush in 2005, more than two dozen states passed laws or resolutions denouncing it or refusing to comply. In response, the feds postponed its enactment. In Wisconsin, groups like the Grandsons of Liberty lobbied lawmakers to nullify health care reform by amending the constitution so that the state could opt out. According to the John Birch Society-backed magazine New American, activists in 28 states were involved in similar campaigns as of 2010.

Concern about guns rights has also fueled the movement. The Firearms Freedom Act (FFA), which challenges the federal government’s authority to regulate firearms, passed in Montana and Tennessee, and has been considered in at least 11 other states. The bill says that firearms made and retained in-state are beyond the authority of Congress under its constitutional power to regulate commerce. The federal position is that such laws are unconstitutional. In response to state campaigns the Department of Justice filed a brief in federal court against the FFA.

Another strategy, especially if the federal government ever tried to block nullification efforts by threatening to withhold funds, is a proposed State Sovereignty and Federal Tax Funds Act, which has been introduced in several states. The objective is to place state governments between federal tax collectors and individuals. The goal: to stop the flow of money to the feds before they can use it to intimidate a state. But before things get that far, nullifiers calculate that the threat of such legislation could be enough to make the feds back down on any threats to cut off funding.

Bridging the Divide

The Tea Party movement, sparked in 2009 by widespread disapproval of the federal government’s bailout of mortgage defaulters, grew into a tidal wave of anti-big-government sentiment that helped the Republican Party regain control of the US House in 2010. Supporters said the movement marked a return to core values; critics called it reactionary and possibly racist. In part funded by wealthy interests who saw it as a way to advance their own deregulation, limited government agenda, the Tea Party was a loose association of fiscal conservatives, fundamentalists and libertarians.

A March 2010 poll estimated 37 percent support for its basic agenda. But that figure has dropped, especially since the recent Tea Party-fueled government shutdown. In any case, the movement encompasses contradictory impulses, from libertarian orthodoxy and neo-isolationism to populist anger directed at elites, deficit spending and any perceived foreign threat to US interests.

Some liberals, leftists and Democrats have written off the Tea Party’s anti-federal rebellion as a purely Republican tactic. But there were also liberal nullification campaigns to decriminalize marijuana and bring National Guard units home from wars overseas. “Bring the Guard Home” legislation, for example, would require a state’s Governor, and/or the legislature, to evaluate the legality of orders for National Guard deployments and give them the chance to allow or deny the deployment.

Nullification has clearly exerted influence on federal policies at times. But secession is another matter. Can it happen? Not according to at least one US Supreme Court Justice, the conservative Antonin Scalia. In 2006, he responded to a letter from screenwriter Daniel Turkewitz, who was developing a script about a secessionist movement in Maine. He wrote to all of the justices but only Scalia replied. And the message was that a legal showdown in the Supreme Court could never happen.

“If there was any constitutional issue resolved by the Civil War,” Scalia said, “it is that there is no right to secede.”

Even assuming that is true, the Court’s refusal to revisit the issue is not apt to quell the anger roiling in many parts of the country, or stop anti-federal, independence, secession, and nullification movements from attempting to rally people with the hope that they can prevent an “evil,” or just morally and economically bankrupt, government from seizing more power. Or even roll it back. Part of what unites these upsurges is clearly anger; another part is distrust and disbelief. They simply don’t have faith in most political institutions anymore, especially “big government.”

On the other hand, the left and right have been culturally polarized for generations, disagreeing passionately (sometimes violently) over moral issues, racism, abortion, immigration, climate change, and controlling the distribution of wealth as well as power. In fact, they often perceive very different “realities.” Post-2008 one side decided that President Obama was a socialist, maybe even a Muslim Manchurian Candidate. The other said he was at best a political sell out, and in some ways was doubling down on the mistakes of the previous administration. One side says climate change is a hoax, or at least exaggerated, and the government should institute literacy tests for voting. The other sees ecological (or economic) catastrophe just around the corner, thinks guns should be strictly controlled, and says states should seize public resources as “trustees” of the commons.

There is some common ground between the two ends of the political spectrum, beginning with the idea that in the face of oppression (however you define it) withdrawal of consent can make a difference. The idea is that disengagement, whether gradual or sudden, is preferable to sticking with the team, staying the course, remaining faithful to or engaged with a system in which you no longer believe. Even active resistance is justified if necessary.

Left-wing protestors have often used civil disobedience tactics and generally embrace the philosophies of Gandhi and Martin Luther King Jr. Early Vermonters resisted outside control, government pressure to wage war, and human slavery. Tea Party activists have taken selected pages from the same play book, but so far appear to question the value of tolerance and peace.

Maybe these political “outliers,” a disparate collection of  subcultures and “extreme” or “alternative” movements, will someday seize what the media like to call the narrative – aka mass perceptions – and join together long enough to sell the idea that it is time to call an end to the Union. Game over. Bring down the curtain.

It’s more complicated, obviously. But with the United States looking like an empire in decline, militarily overstretched, crippled by long-term debt and frequently on the brink of a crisis, maybe it will happen someday. And if any place does take “the road less traveled,” it may well be Vermont, the “reluctant republic,” fertile ground for original thinkers, common sense tolerance, and independent idealism, a cantankerous maverick that wasn’t sure it wanted in from the start. 

There’s even a bumper sticker: Most Likely to Secede.