Greetings, I’m writing a university paper arguing that Western Australia (an Australian state) was legally justified when it tried to secede in 1933. I’m looking for legal theorists who present arguments in favor of secession. In particular, I’d be interesed in a contractual approach. The following steps of reasoning might be involved:
The constitution of australia is a contract.
the states entered that contract under the assumption that the commonwealth wouldn’t take over their areas of power (they have powers reserved to them under s 107 - similar to the 10th amendment in the US).
So since the Federal government has breached their promise and increasingly centralized power in their hands, the states now have a right to secede.
My lecturers jaw dropped to the floor-- “Wha… where’d u get that argument?”
I’m an Australian. In 1933 Western Australia (a state) tried to secede. A majority of the people in the state voted in favor of it. The federal government refused to recognize the will of the people, and WA was forced to remain a part of Australia.
I’m interested in mounting a legal defense of WA’s secession, based on the theory of original intent in constitutional law as well as contract law.
Basically, I’m saying the Constitution is a contract and the Federal Government breached that contract when it overstepped its bounds and seized powers that were rightfully reserved to the states (cf. the 10th amendment in the US constitution).
I was hoping you could provide me the names of a few libertarian legal scholars who have made a similar argument, as I’ll need all the help I can get given that the entire mainstream legal profession in Australia thinks secession is unconstitutional. Is Randy Barnett one of them?
Just to increase the odds of a response, I’m going to say that I’ve bought your book Nullification, and eagerly await its arrival in the mail. So yes, I’m contributing to feeding your children.
Best wishes,
Sukrit Sabhlok
Undergraduate Law Student at Melbourne University, Australia
I think most libertarians would challenge that the contract is illegitimate in the first place… A contract is something people AGREE to. Just because a group of people votes on something doesn’t give them the right to force a minority into the contract. Having a government around basically means that you’re going to attack anyone, even peaceful homesteaders, in some arbitrary geographic region.
This might be too anarchy-y, but its the most consistent position in my mind.
They also never had a right to make rules about unappropriated land. I can make rules in my house because i’ve homesteaded it. I can’t make rules about what people can peacefully do in the rocky mountains.
I lol’d, only because Tom Woods has brought that up (light-heartedly of course) so many times.
Re: secession, read Spooner’s No Treason, Constitution of No Authority. I think your current approach is very limited except to create a stir. If you argue the law allows secession, someone will propose changing the law so it does not. In fact, you are walking backwards into the argument that secession is something that can be contractually disallowed but may not have been in Australia’s case.
Suppose I argued that there’s no such thing as a social contract, as radical libertarians do. That it’s a myth that legitimizes state power. How would I argue for secession then? The state governments DID ratify the constitution, so the retort would be that there IS a contract as they voted to adopt it.