In the comment-thread to a recent post, our commenter Henry argues that Calexit, as the Golden State’s secession movement refers to its goal, is a non-starter. Is it?
Is secession prohibited by the Constitution? Not explicitly. By Constitutional interpretation? Well, there’s Texas v. White (1869). Wikipedia has excerpted some key passages from Salmon P. Chase’s majority opinion (my emphasis).
The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to “be perpetual.” And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained “to form a more perfect Union.” It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?
I beg to differ. It is not difficult at all to convey, in a written constitution, “the idea of indissoluble unity more clearly than by these words.” For example, the Constitution might have said:
“The Union of States hereby constituted shall be forever and always indissoluble.”
See how easy?
Moreover, I should think that any notion of “a perfect Union” would presume, at the very least, the willing participation of its members; a Union that a constituent party wishes so badly to leave that it is willing to go to war over it hardly seems “perfect” to me. So with all due respect, I think Chief Justice Chase rather badly missed the mark here.
The Chief Justice continued, referring to the recent Civil War:
Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation.
Chief Justice Chase presents this as some sort of reductio ad absurdum. I see here a syllogism going something like this:
1) If the secession of the Confederacy were valid, then the Civil War would have been “a war for conquest and subjugation”.
2) The Civil War was not a war for conquest and subjugation.
3) The secession of the Confederacy was not valid.
If this all seems solid to you, you might like to ask a Southerner about premise 2).
Salmon P. Chase was born in New Hampshire. The concurring Justices were born in New York, New Hampshire, and Connecticut (as well as one who, though born in Maryland, went to college in Ohio, Massachusetts, and Yale, married a gal from Massachusetts, and settled in Illinois). The dissenting Justices, however, were all Southerners. (I suppose that’s why they call these things “opinions”.)
The fact is: the Southern states seceded from the Union, and the North forced them back in by defeating them in an exceptionally bloody war. You may claim a legal basis for it, if you like (and of course the North did like) but in the end, like so much of human affairs, it comes down to power. How else would you compel a seceding state to rejoin the Union except by “conquest” (i.e. the seizure of sovereignty by superior force, military or other), and “subjugation” (forcing submission to the will of the conqueror)?
It can certainly be argued that to secede from the Union is to renege on a contract, namely the Constitution itself. But the Constitution, to the extent that it is a contract at all, is a contract between the United States of America — and as soon as a state has seceded from that Union it considers itself no longer a part of that republic. Why would it consider itself bound by the Constitution of a nation it doesn’t belong to?
“No,” you might say, “to secede in the first place is a breach of contract.” But what gives contracts their binding power, in the absence of voluntary compliance? Only the coercive power of the sovereign — a sovereign to which a state in secession no longer believes it owes any obedience.
The question, then, is not a Constitutional one, but, as it was in the 1860’s, a matter of coercive power. If California were to secede, this means that the rump United States would have to decide whether to retake it by force.
Would it do so? The previous Civil War was a gruesome affair, costing over 600,000 lives. How would a sitting President, in the second decade of the 21st century, decide what to do?
Perhaps he would try and consult the nation’s mood, the national will. But what would be the national will be in a nation so deeply divided as ours? California, after all, is the mothership of Leftism in America: of radical environmentalism, open borders, sexual libertinism, and entropic postmodernism regarding every natural category. It media apparatus is the great antenna from which the liberal Narrative is broadcast, and its balmy littoral precincts are where the Cathedral’s wealthy and photogenic aristoi fly home to roost, in sumptuous isolation. All of this attracts a good deal of sympathy from a great many people throughout the Clinton Archipelago. (They may not occupy a lot of physical territory, but they are numerous, and they make a lot of noise.) How would they react to the sight of B-2s over the Golden Gate?
Admittedly, the secessionists in California might not be able to put up much of a fight; it’s hard to imagine Barbra Streisand or Lena Dunham striking fear into the hearts of the Marines. But I do believe that an awful lot of people in America would not only not want to reclaim California by force, but would be strongly sympathetic to its secession, and would even be inclined to move there once the dust settled.
On the other side of the coin, there would be an awful lot of people in TrumpLand who would be happy to see California go, and even happier to see local sympathizers hit the road for the new Utopia.
In short, a peaceful separation might be a great blessing for a nation stuck in a very bad marriage, and badly in need of a divorce. And so I very much doubt that if California secedes the result would be war.
But will California secede? There is certainly a movement towards it that is gathering steam, but it’s too soon to say. If I had to make a guess, though, I’d say that I rather think it actually might.