Unless it can be shown that the inability to terminate was not disclosed, the court should call it a poor decision that you are stuck with.
But neither was there any Constitutional language on other great and important matters (ie abortion, campaign finance, women voting, segregation, etc.) that the SCOTUS has both heard and ruled on. If the means to hear and rule on those matters exist, surely, the right for an entire state to hear an answer to a petition for secession can be found. And, not to quibble, but I disagree that the mere absence of something in the Constitution makes it "illegal", by default.
But, if we are a nation that truly values the rule of law, justice and the freedom and liberty of all men - shouldn't it be fair to assume that we should be supremely concerned with how fair it is? Simply, that fairness is not being considered (if true), seems sufficient cause for concern, to me.
The Constitution being silent on the matter, like others you mention, would result in precedent being the fallback position, no? If so, precedent has been established and would require a decision setting a new precedent. That's unlikely to happen on the matter of secession.
I will give you that. I should also state that I am not a lawyer, Constitutional or otherwise. However, I do enjoy talking about things like this as it increases my knowledge by way of the discussion.
The states acceded their autonomy to the federal government with their agreement in the Constitution. It doesn't work as a system without the authority of the federal government as the ultimate say in matters, in concordance with the agreed precepts established in 1787. If the states are allowed to come and go as they please, then states can willingly ignore anything within that agreement as they see fit. It allows for nullification, signing treaties with foreign entities, abstaining from paying certain taxes, etc. In other words, it makes the whole system moot. So, to answer the question, what can be done to enable secession, absent violence? Create a new agreement between the two sides. Just like in legal work, the agreement you make is valid until you make another one.
I don't question if secession would require going to war / open rebellion....I'm questioning whether it should require it, at all. There's a piece of me that has often wondered if the South's attacking Ft. Sumter might have saved the US from eventually defending a rather difficult legal position. Doing so changed the rules of the game, not from who is "right" or "legally correct", but who caused it to be purely about military strength, alone. And thanks to the South's folly, the question of military might was resoundingly answered....the question of the validity of a peaceable secession, perhaps remains.
I honestly don't think Lincoln was going to allow the secession, Ft. Sumter or not. And as Unimane mentions, if you allow peaceable secession, you are going to not be able to enforce your Federal laws, rendering the Constitution toothless and completely moot. Every time a law came up that a state didn't like, they would threaten to take their ball and go home, causing a complete paralysis at the Federal level. And lets drill it down. Can a county secede from Tennessee? Can I secede my four acres from Norris, Anderson County, Tennessee, United States of America?
This speaks to my earlier point - who says the territory should belong to the Federal government, and not the citizens themselves? The federal government. Imagine how often a spouse would get half of the marital assets, if left to their divorcing partner to decide? See the trouble there?
Is a state a man? The last act of succession was about not valuing freedom and the liberty of all men. And I am not trying to derail this, I am just saying allowing secession is no more about allowing liberty than forcing states to stay in the union was about taking away liberty.
But by joining the Union, you have willfully given over your claim on said territory. It is no longer yours. You are given a certain amount of autonomy, but ultimately, the Federal Government now has emanate domain. For lack of a better analogy, it is more akin to joining a cult than a marriage.
I do not think federal courts would have to recuse themselves from hearing any secession petition or whatnot. Not sure secession would ever reach a Court, but if it did, the power the federal government has - or perhaps more specifically the power some federal courts have - comes from the granting of that power by the people not by the States. So, SCOTUS has the authority to hear cases and controversies that comes from the Constitution which in turn got its power from the people. The federal courts receive their power from Congress, which receives its power from the Constitution, which . . . . . And nothing would prevent the people from following the Constitutional prescribed methods of amending the Constitution in an effort to detail the procedures for secession. Without such an Amendment I think secession is in an "nether-world" or something. Its hard for me to say its illegal but also difficult to see it as legal. Or perhaps better put - I think a President has the authority to stop secession by using force, and would also not be derelict in his duty if he did nothing and allowed a State to secede.
This idea of a new agreement is interesting. But what if neither sides agree to a new contract, and one side can force the other to remain, in perpetuity, against their will, and with no means to exit? And it's not merely a matter of choosing which law, treaty, etc. to ignore or adopt, as a group or on its own - the ability to do so would be impossible, should any member be allowed to do so, simply by line item, and at will....but that's not what we're talking about when it comes to secession. We're talking about a complete and absolute rejection of the totality of the system, itself, and complete independence. If someone is living in your house, its reasonable to expect them to abide by all of your rules. But if they prefer not to do so, and instead wish to leave your home for the expressed purpose of removing themselves from the authority that comes with it....why should you be allowed to lock them in, and refuse to let them leave? Would it be any more fair or just to argue for their continued imprisonment in your home, and to seek to justify such a decision by saying that it would be too difficult for you to maintain the household chores without them?
I think to properly carry that analogy, they would have to declare that the northwest bedroom and bathroom were now theirs, and they owned it. If the US is a house, you can always leave (emigrate). But you cannot take portions the house with you.
Our shared confusion and uncertainty, oddly enough, gives me great comfort. Its one thing to struggle with questions like this, but its even more difficult when so many and honest others believe the issue to have been settled, and with some certainty.
But you do own the bathroom, just as New York owns the living room, California owns the parlor, and Alabama owns the shitter. At some point, you allowed your room to come together with other room-owners so as to build a functional house, and with a shared landlord who held more authority than everyone, combined. And now, for whatever reason, you no longer wish to agree to do that, and want to leave with the same room which you continue to own / inhabit, but are disallowed from doing so....absent you kill the landlord and burn the remaining house down.
It's a fair point about complete rejection vs. a line by line rejection, but I still think it's a house of cards for all other laws, as well, if you allow, at any point and to the discretion of the states, to summarily reject an agreement. I mean, we're also talking about a mutually beneficial system in which the perks given to the states are pretty manifest. Otherwise, as someone stated before, analogies with individual people are problematic, so the idea of confining someone within your house isn't quite the same effect as an entity like a state.
Well, if secession was really something a state wanted to pursue, I think Uni's idea on how to peaceably handle it is the best.
Imagine how the dynamic of a marriage would change, if we deemed illegal and outlawed any possible means of divorce. Imagine if an employer could never fire an employee, for any reason....or that employee could never quit, so as to work somewhere else? The consequences of these things would almost necessitate insufferable abuses.
