Secession Is Not the Answer

I n one of the lesser-covered stories at the close of 2022, San Bernardino County voted to allow its citizens to consider seceding from California. Years of progressive misrule and rising prices have led to civil and social discontentment with the California state government in this diverse county of 2.2 million people.

The actual likelihood of San Bernardino County becoming a new state is comically small. Most of its citizens see the ballot proposal as an unserious publicity stunt. So does Kristin Washington, the local Democratic Party chairwoman. “The option of actually seceding from the state is not even something that is realistic because of all the steps that actually go into it,” she said. She’s right about that, and probably right about the proposal being a form of partisan electioneering that has little to do with actual secession. After all, secession proposals aren’t anything particularly new in California. The state has seen 220 proposals for secession in some form or another come and go; none of them got very far or were treated very seriously. San Bernardino’s proposal isn’t likely to be any different.

Corruption and oppressive bureaucracies in some states have prompted disaffected citizens to entertain the idea of secession — at least intellectually. In California, the far northeastern part of the state has in recent years threatened to leave the state. With older, whiter, and poorer residents than the rest of the state, the six counties warned the state they’d secede if the state did not heed their complaints. The plan to form a new state of Jefferson or to join Idaho — along with some similarly disaffected counties in Oregon — hasn’t amounted to much, though one in six residents of these northeast counties appeared willing to entertain secession. While it’s still a small minority, it’s not insignificant. Moreover, secession in California, in Texas (where many proponents wish to leave the country entirely), and in other locales, largely in the West, is increasingly associated with political conservatives.

Since the Civil War, secession has been seen as anti-nationalistic and as a form of sensational political brinkmanship that died with the Confederate states at Appomattox. Save for a few holdouts in the southern states, Americans in both parties believed secession was no longer — or had never been — legal.

That has been the consensus of the American legal profession and constitutional experts as well. Australian academics Peter Radan and Aleksandar Pavkovic noted that, in the 1869 case of Texas v. White, the Supreme Court — stacked with Republican justices picked by Abraham Lincoln — ruled “that the Confederate state government in Texas had no legal existence on the basis that the secession of Texas from the United States was illegal.” According to Radan and Pavkovic, the Court had underpinned the ruling “that Texas could not secede from the United States” by stating, “Texas had become part of ‘an indestructible Union, composed of indestructible States’. . . . In practical terms, this meant that Texas had never seceded from the United States.”

Since the Supreme Court answered authoritatively that states could not secede; subsequent courts have affirmed that precedent. But in 1869, the Supreme Court was full of members from the Republican Party, and might be accused of being partisan. Was there a more substantive reason, or a constitutional foundation, to deny the legality of secession? In his first inaugural address, President Abraham Lincoln proclaimed: “Plainly, the central idea of secession, is the essence of anarchy.” Lincoln also believed that in some mystical sense, the Union preexisted the states, and famously that it was bound by mystic chords of memory. Thomas Jefferson and James Madison never explicitly endorsed secession but rejected the idea that the Union preexisted the states. In the Kentucky and Virginia resolutions, Jefferson and Madison, respectively, argued that the states, through the federal Constitution, created the Union.

For much of the 19th century, American politicians from a variety of regions believed that Union was what guaranteed American liberties. The idea that the federal government could be meaningfully oppressive was dismissed because many Americans believed that foreign enemies and ideologies like Great Britain, the powers of Europe, and unnamed threats of creeping aristocracy and monarchy were more likely to tyrannize Americans and their liberties than their own elected federal Congress and president.

Even slaveholders like Andrew Jackson saw the Union as the great preserver of American liberties — including the brutal but nonetheless legally recognized right to own human beings. Secession, therefore, was always seen as a revolutionary act, and unionism as a conservative disposition. Emory Thomas, perhaps the best historian of the Confederacy during the latter part of the 20th century, noted that secession was revolutionary, and that even a conservative revolution needed men willing to act in a revolutionary manner. Even reactionary or conservative aims — in this case the aims of southern slaveholders terrified that Lincoln might curtail the ability to expand slavery — often resort to revolutionary means.

The tendency to identify secession exclusively with the American experience in the Civil War is unhelpful. Secession movements exist across the globe. Many have succeeded in the 20th and 21st centuries. Ireland, the Baltic republics, Ukraine and other post-Soviet states, Bangladesh, Pakistan, Papua New Guinea, and other countries exist because of secession movements. In our own day, we tend to use the language of revolution instead of secession for foreign independence movements, perhaps because of Americans’ tendency to see the American revolution (a successful colonial secession movement within the British Empire) as a historical good, and southern secession (an unsuccessful revolution) as historically bad. Americans tend to sympathize with foreign secession movements, but they view secession movements within the United States as insurrectionist and almost wholly negative.

Bloomberg columnist Stephen Carter sees the reflexive tendency to view secession as seditious as mistaken. Although southern secession, he argues, was clearly insurrectionary, “it hardly follows that everyone who advocates carving out a new nation from pieces of the U.S. is an insurrectionist.” The historical presence of black separatist movements, and the aforementioned secessionist movements in Western states, should not lead people to be charged as insurrectionists. New Hampshire recently “refused to bar from the ballot legislators who want their state to leave the U.S. entirely” after a citizens’ group charged them with insurrection, something Carter sees as absurd. “We shouldn’t punish secession talk. Kudos for New Hampshire for understanding this.” He also notes rightly that proponents of secession in California have not been charged with insurrection either. Today’s America doesn’t seem keen on punishing considerations of secession, but, rightly, it does not grant a right to violent secession.

That may not help much for Californians or other Americans fed up with their state governments. The situation for secession within a state or from a state is different from the secession events that precipitated the American Civil War. There are, in fact, clear constitutional mechanisms for secession from a state, but that does not make secession more feasible, likely, or prudent. Secession from a state would have to be approved by the state legislature being seceded from and by the federal congress, and the fact that it’s never happened — West Virginia’s secession from Virginia in 1863 was something of a constitutional mess — makes it clear that even the individual states do not look particularly kindly on secession as a vehicle for political redress.

So, why have populations in conservative red states embraced talk of secession from the United States? And why do conservative voters in blue states seem at least willing to consider it to escape invasive state policies? The answer lies in the fact that secession remains, at least in theory, something that might allow for political redress without resorting to political violence. While the unconstitutionality of secession is generally agreed upon by most scholars, that may not matter to citizens who feel like oppressive state governments are no longer listening to them. Democratic supermajorities in the California legislature mean that rural and economically impoverished citizens might see secession as a necessary revolutionary act, and not as a mere procedural or constitutional one.

Throughout American history, there has lingered the proposition that citizens have certain rights reserved to themselves that aren’t delegated to the states or to the Union. It’s unlikely that a county will actually secede from a state or a state secede from the Union. Nevertheless, governments should heed their citizens’ constitutional rights so that the boundaries of political union don’t get tested in the 21st century.