Could States Really Secede from the Union?

We are told that the Civil War settled the matter.

When 11 southern states decided to secede from the union, the result was a horrendous war in which some 620,000 soldiers died. That grim outcome supposedly provided the answer on whether the U.S. would tolerate states that seek to break away from the union.

So why, then, are more and more people talking about secession? (At least, it appears that the talk is escalating.)

In August, a bipartisan group of more than 100 “current and former senior government and campaign leaders and other experts" produced a report that examined various post-election scenarios. In one of them, the entire West Coast secedes from the union.

Then, in September, Hofstra University conducted a poll which found that nearly 40% of the respondents support or somewhat support the idea that their state should formally request secession if their chosen presidential candidate does not win.

Add to that the fact that several recently published books on secession have been attracting a lot of attention for daring to look at what a fractured United States of America might look like.

Is this all just idle theorizing? Or might there be some kind of secession in America's future? And is there even a legal mechanism for states to secede?

America's Two Warring Camps

Although everyone agrees that secession would be extremely difficult, everyone also agrees that the split that divides Americans into two camps – currently, one blue and the other red – is the widest it's been in many decades.

It's gotten to the point where each side hates the idea of sharing a nation with the other.

That's why people on both sides are at least thinking about secession scenarios, and some of the chatter around the topic is more serious than you might think.

On October 9, the New York Times podcast, “The Argument," discussed the topic, “What happens if Trump won't leave?," and when the discussion turned to the various post-election scenarios that could keep Trump in office despite losing the popular vote again, this is what Times columnist Michelle Goldberg had to say: “I think … you would see a more serious movement than you've ever seen for secession in some of the blue states. And frankly, I think I would be part of it. I don't think it would happen overnight. But I think it would start the processes that turn the break-up of the United States from something completely far-fetched to something that would gradually start to seem more plausible and perhaps eventually even inevitable."

In his book, “Break It Up: Secession, Division, and the Secret History of America's Imperfect Union," journalist Richard Kreitner makes a similar claim. He points out that secessionist impulses have existed in the U.S. since its founding and that they've basically just expanded now to a point where they at least begin to seem plausible.

Kreitner's book is a fascinating historical review of the nation's secessionist movements, but he also makes the point that if the United States were to divide itself into two or more nations, maybe that wouldn't be such a bad idea.

“If the massive hodgepodge of a country known as the United States no longer functions as a going concern," he writes, “maybe it's time to break it up."

Part of what is making the current secession talk unusual is that much of it is coming from people like Goldberg and Kreitner on the left side of the political spectrum. A group called Yes California got the ball rolling for liberals after President Donald Trump was elected in 2016, voicing its desire to leave the union. Then, as the 2020 general election drew closer, we began to hear that secession now has a role in post-election war-gaming.

This marks a shift in the secessionist conversation. At least in recent decades, most of the serious secessionist talk has come from more rural, southern, conservative areas. Texas has probably led the way, with numerous secessionist movements arising over the years. A current venture called Texit claims nearly 400,000 supporters. In addition, various neo-Confederate groups, like the League of the South, have continued to push for secession.

Looking to the Future

So, what are we to make of all this?

David French, a conservative attorney and well-known commentator, is the author of one of the new secession books, “Divided We Fall: America's Secessionist Threat and How to Restore Our Nation," and he reaches a conclusion not much different from Kreitner's: Maybe breaking up is not a bad idea.

While Kreitner doesn't go into specifics on how this is to be done, French is more substantive. He suggests that the nation stay intact but break itself into regional confederations with the ability to maintain their own identities.

Reviewing French's book, Governing.com editor-at-large Clay Jenkinson wrote that the author's main point is that in a nation as big as ours, it's a mistake to attempt to try to forge a single national identity. “French believes we need to relax a little and shrug off the differences that seem to be driving us apart," he wrote. “It's not necessary to have a one-size-fits-all national identity. But don't mess with the Bill of Rights."

At least it sounds sensible.

Do States Have the Right to Secede?

But what if we really do want to divide ourselves into actual separate nations? Could we do it?

The late U.S. Supreme Court Justice Antonin Scalia once wrote, “If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede."

Actually, there is.

What Scalia probably meant to say was that there is no unilateral right to secede. One state can't just say, “The heck with you, U.S.A. We're out of here."

What a state (or states) can do, however, is begin the process of seeking a mutually agreed upon parting of the ways, and that process clearly exists, set forth by the U.S. Supreme Court in its 1868 ruling in Texas v. White. That ruling concluded that a state (or states) could secede by gaining approval of both houses of Congress and then obtaining ratification by three fourths of the nation's legislatures. In other words, it's a tough task.

Texas v. White did, however, suggest another way a state might secede: “through revolution." That might be obvious, but it's a point that French, the author, focuses on when he talks about how a California exit could come about, as he did in the New York Times “The Argument" podcast on Oct. 30. It could happen, he suggests, if civil unrest becomes extreme, and the state and the nation simply agree to part ways to minimize the damage.

But let's not get ahead of ourselves.

Related Resources:

• Rural Oregonians Want Their Counties to Become Part of Idaho (FindLaw's Legally Weird)
• 'N. Colo.' Secession? What a Split Vote Means for '51st State' (FindLaw's Legally Weird)
• How Can Puerto Rico Become a State? (FindLaw's Law and Daily Life)