Rupert Matthews: What would happen if Britain tried to leave the EU? (Part I of II)

Rupert Matthews is a freelance historian and is currently one of the MEP candidates for the Conservative Party in the East Midlands Region. If you are on Facebook, you could join his group “Rupert Matthews for East Midlands MEP”.

In recent months I have been looking at the build up to the American Civil War and have been struck by the fact that the political and constitutional debates that took place in the USA in the 1850s are strikingly similar to those that I have been hearing recently in this country.

That set me pondering on the question: Would Britain be allowed to leave the EU?

The similarities between the constitutional position of the states of the USA in the 1850s and that of the states of the EU 160 years later are striking. The United States of America was formed by a number of sovereign and independent states which formed a supranational authority which was intended to have a loose - and often poorly defined - authority over the states. In the years that followed, the USA admitted new states while the economies and political outlooks of the existing states diverged. The US supreme court consistently passed rulings that saw the power of the Union government enhanced over that of the states. The EU has had a similar history.

By the later 1850s it was clear that the industrial states, which formed a majority, were going to use their power within the structures of the Union to enforce their will on the agrarian minority. This was caricatured by the industrialists as a dispute over slavery (and is often still viewed in such terms), but there was more to it than that.

The population of the southern, agrarian states began to talk about leaving the Union. There were, essentially, three positions on the question of how a state should legally and constitutionally secede from the USA.

1. States Rights. Most prevalent across the South was the view that since the Union had been called into being by the various state legislatures passing into law the Constitution of the USA, then a state could secede by passing an act through its legislature repealing that law. Effectively this meant that a state could secede any time it liked.
2. Union Rights. Most people in the North held that by joining the USA, the individual states had pooled part of their sovereignty to create a new body with sovereign powers of its own. A state could leave this Union only if an amendment were passed to the Constitution of the USA. Effectively this meant that a state could secede only if the other states let it do so.
3. Inviolable Union. A few hard liners in the north held that the creation of the USA had been an irreversible act and that no state could ever leave it.

Since I have been selected as an MEP candidate I have heard all three of these positions being held in relation to Britain and the EU. Some say Britain could leave if the British Parliament repealed the legislation that took us in. Others say that a new Treaty would be required, meaning the other states of the EU would have to give Britain permission to leave. One person (admittedly he was German) told me Britain could not legally leave the EU. One does not need to think Britain should leave the EU to find the debate interesting.

In 1861 South Carolina decided to secede. The state legislature of South Carolina passed a law repealing the law that had taken it into the USA. Over the next few weeks six other southern states did the same. Those states then began acting as if they were now independent states.

The newly elected President of the USA, Abraham Lincoln, refused to recognise the secessions. He declared that all those who had been involved in passing the secession laws were traitors to the USA and so liable to arrest and trial. But Lincoln could not actually have them arrested since the enforcement of law and order was a function of the states, and the seceding states were hardly going to arrest their own people.

The legal and constitutional impasse was, of course, solved by the Civil War, which was won by the North. Arguably the southern states have never recovered economically from the war and the dislocation that followed defeat.

The legal argument over the constitutional position regarding secession from the USA finally reached the Supreme Court in 1869. There was little doubt what the result would be, but the grounds on which the Supreme Court ruled that the secessions had been illegal are interesting and relevant to Britain today.

The Supreme Court effectively discounted all the provisions of the Constitution of the USA as being irrelevant. Instead they focused on the preamble, and on one particular phrase within it. That read that in forming the USA the states were desiring to create “a more perfect Union”. The Court ruled that having signed up to that phrase, no state could ever secede from the Union.

Roll forward to 2009, and look at the current EU. The EU has a supreme court that, like that of the USA in the 19th century, has consistently given rulings that favour the Union over the states. And the EU is founded on a series of documents that include the all-encompassing phrase that the states wish to form “an ever closer Union”.

The phrase “an ever closer Union” is disturbingly close to the phrase “a more perfect Union”. Would the EU supreme court follow the lead of the USA supreme court?

Would Britain be allowed to leave the EU?

Of course, the Treaty of Lisbon (aka the EU Constitution) will change things. How those changes reflect the outbreak of the USA Civil War is the subject of the second of these articles, tomorrow.