The following article was written by James R. Rogers and originally published on the Library of Law and Liberty website.
Rumblings of secession talk in California, as in Texas a few years back, raises the question of how, if ever, a state might secede from the Union without war.
The legal issue surrounding secession in the Civil War era concerned whether states might unilaterally secede from the Union under the Constitution. The answer, underscored by force of arms and the U.S. Supreme Court, was a definitive “no.”
That states may not unilaterally secede from the Union, however, does not mean there is no route by which a state might secede peacefully, and even legally. Indeed, the U.S. Supreme Court has said there is, albeit, saying it in dictum. In holding in Texas v. White (1869) that Texas did not truly secede from the Union, Chief Justice Chase, writing for the majority, nonetheless identified two routes by which U.S. states could peacefully secede: “There was no place for reconsideration or revocation [of Texas’s entry in the Union], except through revolution or through consent of the States.”
Most pertinent for California (and Texas) is the second route for secession Chase mentions, namely, secession of a state via the “consent of the States.” First, though, a word about Chase’s reference to “revolution” as a means of secession.
Modern ears hear “revolution” and think “violence.” But Chase is using the word in a different sense, one that continues to have some currency today mainly as a term of legal art, but in the past had broader use. In the context of Chase’s judicial opinion, and even today, the word can refer merely to the replacement of one constitution by another. These “revolutions” in constitutional government can be entirely peaceful (although they do not have to be).
No better example of this sense of “revolution” exists than in George Washington’s first inaugural address. There Washington refers to the “the important revolution just accomplished in the system of [the American people’s] United Government, the tranquil deliberations and voluntary consent of so many distinct communities, from which the event has resulted, cannot be compared with the means by which most Governments have been established.”
The “revolution” Washington refers to in his address is not 1776, but 1788. The “tranquil deliberations and voluntary consent” of the states resulted in the replacement of the Articles of Confederation with the Constitution. This was, legally, a wholesale change in U.S. national government. It was a revolution. It was, however, a peaceful revolution.
So, too, Chief Justice Marshall in his 1833 opinion for the Supreme Court in Barron v. Baltimore refers to “the great revolution which established the constitution of the United States.” Again revolutionary. But peaceful.
More recently, dissenting in the case of Gatewood v. Matthews (1966), Kentucky Court of Appeals Judge Edward Hill quotes the legal encyclopedia, American Jurisprudence2d on the general principle that “Any attempt to revise a constitution or adopt a new one in any manner other than that provided in the existing instrument is almost invariably treated as extraconstitutional and revolutionary.”
In noting a state can leave the Union via “revolution” Chase is not rehashing the issue of unilateral secession. His comment does not counsel states seeking to secede unilaterally merely to be sure they actually win their wars to effectuate secession via revolution. After all, that much is already obvious without Chase mentioning it. Rather, Chase is noting peaceful routes to secession could be created by the replacement of the current Constitution with a new constitution. A change in the Constitution that would recognize the Union as dissoluble rather than indissoluble, and so would permit states to leave unilaterally, would be a revolutionary change in the theory of the U.S. Constitution.
That said, any constitutional change on that level would be hugely onerous. So of greater interest to putative secessionists in California (and in Texas as far as that goes) would be the second route Chase mentions, secession “through the consent of the states.” This route would not only be a peaceful means of secession, it would be a constitutional (i.e., non-revolutionary) one as well.
Much of the commentary related to California’s budding secession movement suggests that a constitutional amendment would be necessary for the peaceful, lawful secession of a state from the union. I don’t think so. Chase’s dictum regarding the “consent of the states” does not suggest the need for constitutional amendment to authorize a state’s secession.
Rather, to implement this route for the legal secession of a state, Congress would need only to adopt enabling legislation spelling out the process by which consent of the states would be obtained. Congress could stipulate the states’ consent would be provided by some proportion of state legislatures – half of them, or two-thirds – adopting a “secession consent” resolution or something. Or Congress could authorize states to consent to a state’s request to secede through special state-level conventions or by direct vote in state-level referenda. Or perhaps Congress could provide state consent through a vote of the Senate, or a vote of the Senate and the House, or some combination of the above.
Whatever process Congress might adopt for secession need not be as onerous as the process required to adopt constitutional amendments: Adoption of enabling legislation need not require a supermajority vote in Congress (as constitutional amendments require). And, at congressional determination, the proportion of states sufficient to provide the “consent of the states” could be fewer than the three-fourths majority required to ratify constitutional amendments.
To be sure, Chase’s passing comment in Texas v. White might be a thin reed to depend on if a state were serious about pursuing secession legally. Nonetheless, Chase’s comment suggests that a constitutional amendment would not be necessary for a state legally and peacefully to separate from the Union. And the opinion of the Supreme Court writing immediately after a time of contested secession, when the issue had been the focus of extended thought and debate, counts for something, even if provided as dictum.
James Rogers is associate professor of political science at Texas A&M University, and is a fellow with the Institute for Science, Technology and Public Policy at the Bush School of Government and Public Service. He also served as editor of the Journal of Theoretical Politics from 2006 through 2013.