Could California Secede?

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.

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24 Comments

  1. Thomas says

    I pray for the success of California’s secessionist movement. Your analysis of the constitutionality of secession is similar to mine: https://politicsandprosperity.com/2009/07/02/secession-redux/

    Posted February 5, 2017 at 8:35 pm | Permalink
  2. Wilson says

    Can’t let the naval bases go. Also it would likely become part of Mexico, and we don’t need a longer Mexican border. Maybe a “California Purchase” can be arranged so that it can be resettled by Americans

    Posted February 5, 2017 at 10:52 pm | Permalink
  3. The preferred nomenclature is... says

    I think a divorce is the only solution. As an example, when I was employed by a large bank in San Francisco back in the 90’s I worked with and have remained in contact with a fellow originally from Boston. He was straight out of central casting for Oscar from the Odd Couple.

    We’ve both returned to our states of origin for many years now. He is in his 60s. He has been going bonkers over Trump. The texts he sends me are Ashley Judd level.

    If guys like that are putting on their pink pussy hats, I don’t want anything to do with the Left anymore. Let them and us go our own separate ways.

    Posted February 6, 2017 at 12:05 am | Permalink
  4. California seceding seems like a logical nightmare

    Posted February 6, 2017 at 4:01 am | Permalink
  5. *logistical. The military, currency, government, trade, etc. would all have to be restructured..it would ironically create more bureaucracy and problems than it could solve.

    Posted February 6, 2017 at 4:04 am | Permalink
  6. Whitewall says

    Well for starters I’m glad all the confederacy and secession talk does not revolve around those of us in the South- NC for me. There has formed a Blue Confederacy split from each other by a huge land mass. If California were to somehow leave, would New England be far behind? NE has threatened it more than once in the distant past. I would bet that NE could stay more united afterwards than would Ca.

    If our Constitution means what most claim it means, then secession is unconstitutional. If our Constitution is simply a “living breathing document” necessary for modern times, then that might be another matter completely.

    As for the “Great Shooting Event” of 1861-1865, I have always believed that no actual war would have happened if a certain person had not opened fire on Fort Sumter thereby changing a walk out and shun into a bloody tragedy.

    An independent CSA would have only limped into the 20th century, dragging a planter-slave holder mentality with it while the non planter population, my family, began to modernize and imitate the rest of America. It would be very difficult for the CSA to build a successful functioning society on an immoral foundation. As for California, their problems seem to stem from a total rejection of the norms and habits of a successful society. They honor dysfunction and illegality of non assimilated migrants over those who are legal and law abiding. This will not be a sound foundation for a successful functioning society either and I doubt Ca would last much past 2050 or so. Probably by then if not before, many parts of the state will have rebelled and rejoined America.

    Premise #2 is indeed problematic.

    Posted February 6, 2017 at 8:47 am | Permalink
  7. J Clivas says

    California tries so hard to be the bellwether for the rest of the country. if it secedes, it can be the bellwether for itself.

    Posted February 6, 2017 at 4:43 pm | Permalink
  8. Tina says

    Here’s what happens when people get together and talk “secession” in Texas. They can’t let California go, because then Texas (joined by Oklahoma and probably Louisiana) would go: http://www.chron.com/news/houston-texas/article/Feds-raid-Texas-secessionist-meeting-6096637.php

    Posted February 6, 2017 at 8:15 pm | Permalink
  9. Jason says

    Mr. Pollack, excellent blog.

    Concerning the issues of secession, I think the matter is fairly simple. If California or Texas or any other state were serious about it, a case would go to the Supremes for judgment. They probably would argue something to the effect that considering past history and precedent, anything so drastic would require a Constitutional amendment. And then that would probably be that, at least for awhile. I don’t see even Texans resisting the will of America’s armed forces.

    Posted February 6, 2017 at 8:30 pm | Permalink
  10. Jason says

    However, considering your general point, I have to uneasily concede that you probably are right. While prudence would seem to me to argue very strongly against secession (how can any democratic polity survive if members can threaten to walk out whenever they don’t get their way?), it’s hard to say that the Constitution really denies it. Indeed, the 9th and 10th amendments could be construed to support it.

    Posted February 6, 2017 at 8:41 pm | Permalink
  11. Asher says

    Premise 2 is correct because the North won. Had the South won premise 2 would be incorrect.

    Posted February 7, 2017 at 1:58 pm | Permalink
  12. Malcolm says

    Asher,

    Exactly.

    Posted February 7, 2017 at 2:22 pm | Permalink
  13. Asher says

    Malcolm,

    It’s amusing that almost all leftist arguments are premised on the notion that might makes right. When I point that out I get called a nazi, or even more intellectually dishonest dissimulation.

    Posted February 7, 2017 at 3:02 pm | Permalink
  14. Asher says

    Consider the claim that the 2nd Amendment can’t possibly be about a defense against government overreach. The response is that government power is too strong for private citizens to resist. That is a blatant argument from might makes right.

    I point this out repeatedly. It is never even acknowledged.

    Posted February 7, 2017 at 3:04 pm | Permalink
  15. Asher,

    This is, in fact, what I have been arguing.

    The principal issue of the Civil War was whether or not any state may secede from the Union (Emancipation was, essentially, an afterthought). Lincoln insisted that a state may not secede.

    The ensuing War may be characterized however one wishes, but Lincoln was vindicated at Appomattox. Case closed.

    That’s my story and I’m sticking to it.

    Posted February 7, 2017 at 3:17 pm | Permalink
  16. Asher says

    “I have given you an empire, as long as you can keep it”

    Abraham Lincoln

    Posted February 7, 2017 at 3:26 pm | Permalink
  17. Malcolm says

    Henry,

    Well, Lincoln certainly won. Whether that also provides “vindication”, though, is another matter.

    The word is from the Latin vindicare, one meaning of which is “to avenge”. So in that sense, at least, I suppose you are right.

    Posted February 7, 2017 at 3:27 pm | Permalink
  18. Malcolm,

    Frankly, I was not entirely happy with my choice of wording. The meaning I was trying to convey was that Lincoln’s point of view vis a vis secession had prevailed (indeed, by force of arms). Nevertheless, although force of arms is not the same as legislative procedure, it has always carried a convincing establishment of precedent for future proceedings.

    Would you say Magna Carta was a legitimate example?

    Posted February 7, 2017 at 4:18 pm | Permalink
  19. Malcolm says

    Henry,

    …although force of arms is not the same as legislative procedure, it has always carried a convincing establishment of precedent for future proceedings.

    I can put that a little more succinctly for you:

    “Might makes right.”

    Magna Carta is certainly a legitimate example of the abatement of monarchical sovereignty by a correlation of forces. But that agreement wasn’t always respected either, as we saw, for example, in 1642. Whether the establishment of precedent by force remains “convincing” is very often simply a matter of whether the side that did the convincing retains its power. (It helps a lot if the victors can write the schoolbooks going forward.)

    Sometimes might aligns itself with what we think of as “right”; sometimes it doesn’t. It’s worth noting that in any conflict of power, both sides think they’re right.

    Posted February 7, 2017 at 6:41 pm | Permalink
  20. I think we have segued from a discussion of what our federal government allows the individual states to do, to philosophical questions of what is deemed to be proper in such dealings. The latter are the types of issues I rarely am inclined to participate in. I am not a philosopher nor even a lawyer or historian, though I do take a layman’s interest in American history.

    As for Asher’s mischaracterization of Lincoln’s view of our Union (it is by no means an empire), California was a territorial possession of the United States prior to its statehood. The federal government granted California statehood status at the time it admitted California to our Union of the United States. All the more reason that California has no inherent right to an independent status as a separate country.

    Perhaps California may be allowed to petition the federal government for territorial status (such as Puerto Rico’s). But that is something I am in no position to comment about. Nor do I care whether or not California would be interested in doing so. I am actually looking forward to a time when I am in a position to move to another, much more sane state.

    Posted February 7, 2017 at 8:14 pm | Permalink
  21. Asher,

    I somehow overlooked your comment at 3:02 pm when I was composing my comments that followed it. If you are suggesting that I am in any sense a supporter of a Leftist worldview you couldn’t possibly be more wrong. I resent both yours and Malcolm’s attribution to me of supporting a “might makes right” ideology. Neither one of you seems to comprehend that what I support (and have always supported) is the rule of law.

    What I thought we were debating here was what procedures carry the weight of law, as established both by legislation and by precedence. It seems to me that what you guys are interested in talking about is something to do with what philosophers take to be moral issues.

    I am not interested in such philosophical discussions. They are never-ending; they never reach any sort of mutual understanding; and, they require much more patience than I could possibly muster. I would much rather stick needles in my eyes.

    Posted February 7, 2017 at 10:33 pm | Permalink
  22. Malcolm says

    Asher, Henry’s certainly no leftist.

    Henry, I’ve never thought of you as espousing a “might makes right” worldview. In this case, though, “might made right in 1865” was the only way I was able to make sense of your argument about the precedent set by the Civil War.

    Posted February 7, 2017 at 11:31 pm | Permalink
  23. Malcolm,

    Thank you for that. You have known me long enough to know that I loath the Leftist worldview and that I couldn’t possibly support a “might makes right” ideology, which indeed reminds me of “Arbeit macht frei” [“work sets you free”] the Nazi slogan at the entrance to Auschwitz.

    Mortimer Adler defined the “American Testament” to be, collectively, the complete texts of the three great documents: the Declaration of Independence; the Constitution of the United States; and Lincoln’s Gettysburg Address. In his Address, Lincoln spoke of our Union (in terms of “nation” and “government”) thus:

    Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

    Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. […]

    We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. […]

    — that we here highly resolve that these dead shall not have died in vain — that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth.

    Lincoln prosecuted the Civil War, won it, and ultimately died for the concept of our Union as a nation from which no state may secede.

    Posted February 8, 2017 at 3:38 am | Permalink
  24. Whitewall says

    Fine discussion all around gents. See why I’m glad my part of America is not the current subject matter…although it pretty much is? California is the subject and secession is the goal. Can they legally do so? If precedent carries over-no. If an expansive view of the Constitution takes hold, maybe yes.

    Posted February 8, 2017 at 7:38 am | Permalink