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.