After the election of Donald Trump, many people got irrational, particularly Governor Jerry Brown, and the people of California (who ironically opened an embassy in Moscow in protest). Since then, many people, both in California and across the country, have pushed for the Golden State’s secession. Last Tuesday, California’s Attorney General decided to humor the #CalExit organizers.
Last Tuesday, California Attorney General Xavier Becerra apparently finished his scotch, said “what the hell,” and gave his stamp of approval for a group of people to begin gathering the more than 585,000 signatures needed to allow a ballot initiative that would allow a ballot initiative calling for secession to be put on the 2018 ballot. If the ballot measure were to somehow pass, a commission would form to explore how the state could secede from the United States, unfortunately, this will never happen.
Secession isn’t a new idea, outside the Civil War, the idea pops up every couple of years, normally in Texas, and at that time realists endlessly mock these attempts, and for good reason, the fact remains that there is no way to secede from the Union written in the Constitution. Article IV Section 3 of the Constitution deals with how to admit a new state into the country, but the reverse is never discussed, and has been dismissed outright by plenty of respectable legal scholars.
In 2006, former Supreme Court Justice Antonin Scalia was asked by screenwriter Dan Turkewitz if a group of people suing the government for the right to secede would be a good plot point. Scalia responded saying that state’s do not have the right to secede. In his letter back to Turkewitz, Scalia said that such an issue would never even reach the Supreme Court:
“To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. … Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.”
What Justice Scalia pointed out in that first line is something most people don’t realize. In the eyes of the United States government, there no such thing as the “Confederate States of America.” The southern states, in their mind, were just occupied by hostile citizens. This line of thinking was pointed out in the 1869 Supreme Court case Texas v. White. This case argued that Texas’s Confederate state legislature had illegally sold bonds that were owned by Texas, and issued by the United States government as part of the compromise of 1850. While ruling on this case, the justices wrote;
“The Constitution, in all its provisions… looks to an indestructible Union composed of indestructible States.”
So while Jefferson Davis and his friends may have seen themselves as an independent country, the United States hadn’t given them the go-ahead to secede, so they had no sovereignty. The Civil War was a war for independence, much like the American Revolution was a war for independence. We had to defeat the British before getting the go-ahead to secede; if we had lost, we’d have socialized medicine and a government that doesn’t respect individual rights, and do we really want that?
While it amuses us to think that a state that disagrees with our own core ideologies could soon be gone, it is unlikely to happen. So unfortunately it looks as though referring to San Francisco as a “foreign country” will remain hyperbole.