California Secedin’

Rumblings of secession talk in California, as in Texas a few years back, raises the question of how, if ever, a state might secede from the Union without war.

The legal issue surrounding secession in the Civil War era concerned whether states might unilaterally secede from the Union under the Constitution. The answer, underscored by force of arms and the U.S. Supreme Court, was a definitive “no.”

That states may not unilaterally secede from the Union, however, does not mean there is no route by which a state might secede peacefully, and even legally. Indeed, the U.S. Supreme Court has said there is, albeit, saying it in dictum. In holding in Texas v. White (1869) that Texas did not truly secede from the Union, Chief Justice Chase, writing for the majority, nonetheless identified two routes by which U.S. states could peacefully secede: “There was no place for reconsideration or revocation [of Texas’s entry in the Union], except through revolution or through consent of the States.”

Most pertinent for California (and Texas) is the second route for secession Chase mentions, namely, secession of a state via the “consent of the States.” First, though, a word about Chase’s reference to “revolution” as a means of secession.

Modern ears hear “revolution” and think “violence.” But Chase is using the word in a different sense, one that continues to have some currency today mainly as a term of legal art, but in the past had broader use. In the context of Chase’s judicial opinion, and even today, the word can refer merely to the replacement of one constitution by another. These “revolutions” in constitutional government can be entirely peaceful (although they do not have to be).

No better example of this sense of “revolution” exists than in George Washington’s first inaugural address. There Washington refers to the “the important revolution just accomplished in the system of [the American people’s] United Government, the tranquil deliberations and voluntary consent of so many distinct communities, from which the event has resulted, cannot be compared with the means by which most Governments have been established.”

The “revolution” Washington refers to in his address is not 1776, but 1788. The “tranquil deliberations and voluntary consent” of the states resulted in the replacement of the Articles of Confederation with the Constitution. This was, legally, a wholesale change in U.S. national government. It was a revolution. It was, however, a peaceful revolution.

So, too, Chief Justice Marshall in his 1833 opinion for the Supreme Court in Barron v. Baltimore refers to “the great revolution which established the constitution of the United States.” Again revolutionary. But peaceful.

More recently, dissenting in the case of Gatewood v. Matthews (1966), Kentucky Court of Appeals Judge Edward Hill quotes the legal encyclopedia, American Jurisprudence 2d on the general principle that “Any attempt to revise a constitution or adopt a new one in any manner other than that provided in the existing instrument is almost invariably treated as extraconstitutional and revolutionary.”

In noting a state can leave the Union via “revolution” Chase is not rehashing the issue of unilateral secession. His comment does not counsel states seeking to secede unilaterally merely to be sure they actually win their wars to effectuate secession via revolution. After all, that much is already obvious without Chase mentioning it. Rather, Chase is noting peaceful routes to secession could be created by the replacement of the current Constitution with a new constitution. A change in the Constitution that would recognize the Union as dissoluble rather than indissoluble, and so would permit states to leave unilaterally, would be a revolutionary change in the theory of the U.S. Constitution.

That said, any constitutional change on that level would be hugely onerous. So of greater interest to putative secessionists in California (and in Texas as far as that goes) would be the second route Chase mentions, secession “through the consent of the states.” This route would not only be a peaceful means of secession, it would be a constitutional (i.e., non-revolutionary) one as well.

Much of the commentary related to California’s budding secession movement suggests that a constitutional amendment would be necessary for the peaceful, lawful secession of a state from the union. I don’t think so. Chase’s dictum regarding the “consent of the states” does not suggest the need for constitutional amendment to authorize a state’s secession.

Rather, to implement this route for the legal secession of a state, Congress would need only to adopt enabling legislation spelling out the process by which consent of the states would be obtained. Congress could stipulate the states’ consent would be provided by some proportion of state legislatures – half of them, or two-thirds – adopting a “secession consent” resolution or something. Or Congress could authorize states to consent to a state’s request to secede through special state-level conventions or by direct vote in state-level referenda. Or perhaps Congress could provide state consent through a vote of the Senate, or a vote of the Senate and the House, or some combination of the above.

Whatever process Congress might adopt for secession need not be as onerous as the process required to adopt constitutional amendments: Adoption of enabling legislation need not require a supermajority vote in Congress (as constitutional amendments require). And, at congressional determination, the proportion of states sufficient to provide the “consent of the states” could be fewer than the three-fourths majority required to ratify constitutional amendments.

To be sure, Chase’s passing comment in Texas v. White might be a thin reed to depend on if a state were serious about pursuing secession legally. Nonetheless, Chase’s comment suggests that a constitutional amendment would not be necessary for a state legally and peacefully to separate from the Union. And the opinion of the Supreme Court writing immediately after a time of contested secession, when the issue had been the focus of extended thought and debate, counts for something, even if provided as dictum.

Reader Discussion

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on February 08, 2017 at 08:58:41 am

This seems exactly right. Very insightful post! But it might be good to pursue both avenues.

Having an amendment to spell out the procedure would certainly settle any doubts with respect to legislation to redefine a constitutional relationship of such fundamental importance. But more importantly, it would place upfront what had before been only an implicit check a best.

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Hans Eicholz
on February 08, 2017 at 10:12:25 am

Interesting assertion. Although I might be tempted to view the secession of California with great enthusiasm, as Trump would very likely have easily won the electoral AND the popular vote if California were not in the Union. In addition, if what appears to be California's looming fiscal and impending pension crisis, such a collapse likely may require some sort of Federal bail-out; not to mention how prone California is to the natural disasters that so often result in the allocation of so many national disaster relief funds - these may all be good arguments in support of California secession.

However, I might dispute the wisdom, even where the legal possibility exists, to not require super-majority support for any such enabling legislation, as the national security and national economic consequences of secession in some instances, especially regarding such states as California with its vast Pacific shoreline and related naval strategic defense importance, and Texas, with its vast fossil-fuels reserves, whose loss would be quite substantial for the remainder of the Union.

We should never be so hasty as to amputate a vital appendance when there are available less radical procedures to eliminate the thorn in our paw.

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Paul Binotto
on February 08, 2017 at 10:15:13 am

Oops - that should be "Appendage"

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Paul Binotto
on February 08, 2017 at 11:11:09 am

I think Mr. Rogers is being far too legalistic here and as a result omits the realities on the ground.

A change in constitution is revolutionary and is, or would be, required for secession. The essayist asserts that this would be difficult, at best.

Am I missing something?

THIS constitution has already been changed via the simple but effective doctrine of living constitutionalism; and, miracle of all miracles, it required neither a vote nor violence. No, boyos, it was, and is being, pulled off by the Black Robes. Can one not imagine five Black Robes simply diving such a right to secession under our current constitution? I mean after all, in a nation predicated upon *Rights* what can be more fundamental than the *Right* to have your own government, especially if the existing one is led by one so vile as The Trumpster would be the argument.

And after all they are THE SUPREMES.

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on February 08, 2017 at 11:23:58 am

Mr. Gabe - in that case, would that make HRC Diana Ross?

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Paul Binotto
on February 08, 2017 at 12:02:30 pm

It would require hip reduction surgery, I suppose but I suppose I could see her belting out "Stop, in the name of (the popular vote)!"

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Image of gabe
on February 08, 2017 at 13:48:16 pm

There's a good case to be made for unilateral secession as a remedy for breach of contract: https://politicsandprosperity.com/2016/08/18/a-resolution-of-secession/

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Image of Thomas
on February 08, 2017 at 14:34:02 pm

I didn't even know that was possible, Mr. Gabe. I hate to even think what such a procedure would entail! Ha!

Fortunately, there does seem to be at least one mountain high enough to keep her from getting to U(nited States Presidency), babe!

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Paul Binotto
on February 08, 2017 at 15:29:09 pm

Might does not make right. The War for Southern Independence did not prove that a state may not secede. It only proved the nature of the U.S. government at the time. And the Supreme Court cannot change the fact that this is a union of States. If this was involuntary, it would simply be an empire. Furthermore, this union was created BY the thirteen original states, and every other state has come into the Union on an equal level with the original thirteen.
I would argue that a state legally needs no reason to secede. History validates this argument. Prudence would dictate, of course, that secession is a last resort, but this does not change the fact that a state may do so at any time.

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Image of Lane
on February 09, 2017 at 08:57:17 am

Mr. Lane,

I can recall Lincoln's discourse on this subject referencing when and under what conditions the Constitution provides for a state to justifiably secede - I cannot recall if this reference appeared herein in an earlier essay, or elsewhere, and I would need to research it more to find the specific source. But, Lincoln's argument, to paraphrase, was that it would take a breach of contract (in essence), by the Federal Government against the state(s) to justify secession, and he makes a very persuasive argument that there was no such breach precipitating the Southern States secessions.

Perhaps the legal scholars among us (I am certainly not one) could confirm and elaborate better on Lincoln's position.

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Paul Binotto
on February 09, 2017 at 14:56:43 pm

I don't imagine that a single law covering the process of secession would be adequate. Let's look at some scenarios.

1. The US sells the entire land of a state to another country. We sell Alaska back to Russia.

2. The US government and a state agree to part company peacefully. The people of California overwhelmingly want to become their own nation and the people of the rest of the states want to disown them.

3. The people of a state demand to part company peacefully or not, but with the full support of the people and proper process of law being executed. Vermont insists on leaving the union, and the people of the rest of the states want to keep Vermont. We like Vermont. Vermont doesn't like us.

4. A manipulative government in a state cajoles its citizens into wanting to leave using lies and abuses of power.

Each of the scenarios needs to be addressed differently because the circumstances are different.

#1 and #2 are two different legal positions, one contractual, one governmental.

#3 is somewhat problematic and requires diplomacy before law.

#4, a lot of folks recognize, was the case in the Civil War. State leaders misled the public and entered into office through dubious means and from their misappropriated positions argued for secession at all costs. #4 is addressed with force, not law.

No single law will fit all possible scenarios. No single judicial comment either. Nor a single military application.

The reason for preventing states from leaving the union at will is to prevent manipulators, internal and external, from weakening the union through lies, bribery and other social manipulations. A powerful enemy could destroy the union by separating one state at a time until the remaining states were too weak to stand.

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Scott Amorian
on February 11, 2017 at 09:06:34 am

It is not the consent of the states that must be gained, but the consent of the people. The Constitution is not a pact among the states, it is a pact among the people of the United States. The people have decided via the supreme law of the land that secession is not allowed and Congress does not alone have the power to undo what the people have willed in the Constitution. The Constitution must be amended in order for secession to be a legal act.

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Brett Champion

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