Can Portions of States Secede from Those States?

This is in the news again, in San Bernardino County—a county next to L.A., which is home to over 2 million people (AP):

The county's Board of Supervisors voted 4-0 on Wednesday to put the secession measure on the 2022 ballot, the Southern California News Group reported. One supervisor was absent.

The measure will go before the board again next Tuesday for final adoption. The initial draft would put this question to voters on Nov. 8: "Do the citizens of San Bernardino County want the San Bernardino County Board of Supervisors to study all options to obtain its fair share of state and federal resources, up to and including secession?"

Can they do that? Why, yes, they can, but only with permission of the state from which they're seceding as well as of the federal government. Article IV, section 3 of the U.S. Constitution provides,

[N]o new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The provision allowing such actions with the states' and federal government's consent appears to apply to both the "erected within" clause and the "formed by the Junction" clause, and indeed this is what happened when Kentucky seceded from Virginia in 1792 and Maine seceded from Massachusetts in 1820. (I set aside the West Virginia / Virginia precedent, which was complicated by the Civil War.)

Our own Eugene Kontorovich has argued that when part of State A seeks to join State B, the consent of State A might not be required, since that's neither erecting a new state within state A nor forming a new state. But I'm inclined to think state A's consent would be necessary: If San Bernardino County joins Nevada, that is in effect forming a State (albeit one that would also be called Nevada) by the Junction of two "States, or Parts of States" (the State of Nevada and Part of the State of California).

So the Constitution forbids nonconsensual secession from a state (secession without the consent of the state that loses territory); but it doesn't forbid consensual secession.

Comments

[tkamenick]

If you read punctuation in the modern sense, I think you would have to conclude that the "with consent" part did NOT apply to creating a new state within the jurisdiction of an existing state. The semi-colon would make that first clause independent from the following two, and the third clause would only modify the second.

Has this been litigated? When?

[ReaderY]

Modern usage would use a semicolon instead of a comma after “Parts of States.” The purpose of the semicolon appears to be simply thst there is an interior comma, so it just forms a comma hierarchy (like using square brackets within parentheses for a parenthetical comment within a parenthetical comment) without changing the meaning from that of a comma.

Wondering if having a comma instead of a second semicolon was a typo even for the day.

[Brett Bellmore]

Punctuation was a bit casual at the time, they often threw in commas wherever they thought somebody might pause to breathe.

[DaivdBehar]

The count is the size of West Virginia, 80% owned by the feds. It is majority Hispanic and Democrat. This is a message to the woke.

[ReaderY]

At any rate I would look to Framer intent and not read too much into tbhe difference between a comma and a semicolon, just as I wouldn’t read too much meaning into a word’s being capitalized in one place and not in another. The Framers clearly intended to protect states from being dismembered or otherwise territorially messed with against their will. This is consistent with their general tendency to protect core aspects of state sovereignty and rights apparent throughout the Constitution. Among other things, it prevents Congress from engaging in gerrymandering on a national scale.

[Krayt]

Thank you. End the scurrilous behaviors of tricksters trying to use technicalities to accomplish large-scale, huge political goals.

This is as bad as ERA amendment proponents trying to use little tricky legal arguments to accomplish a goal which is supposed to be open and obvious to all.

This isn't a freakin' game of Nomic.

[Krayt]

Remember: The tricksters here, or with ERA, can probably quote scripture and verse of how wrong Trump was to use tricky technicalities to secure the presidency.

YOU BOTH SUCK!

[tkamenick]

Yeah, I agree. Capitalization, punctuation, grammar are were looser then. But interestingly, the modern technical reading actually would still protect states from dismemberment, because it would read as a complete prohibition on forming states within other states.

[Brett Bellmore]

" I set aside the West Virginia / Virginia precedent, which was complicated by the Civil War."

Complicated, in the sense that they just outright violated the Constitution in that case. Did that a lot during the Civil war.

[OtisAH]

Like when several states claimed to secede and waged war against the United States of America, or are you thinking of something else?

[bevis the lumberjack]

He’s thinking, among other things, about Lincoln suspending habeas corpus. That does count as a clear violation of the constitution. I guess it’s easier for a hard core partisan like you to reflexively argue than to just admit to well established historical fact.

[OtisAH]

Ah yes, established fact. Like it is established that Brett is far more concerned with the actions taken by a president during a war on U.S. soil than the fact that several states waged war against the United States of America.

[BravoCharlieDelta]

You must be concerned with my things and not your things!

Good grief. Are you 11?

[bevis the lumberjack]

The Golden Rule of zealotry - never ever admit that anyone you disagree with made a valid point.

[SMP0328]

He’s thinking, among other things, about Lincoln suspending habeas corpus. That does count as a clear violation of the constitution.

At the time it wasn't clear. The Supreme Court ruled the President couldn't suspend Habeus Corpus unilaterally, he needed Congress's consent. After that ruling, Congress consented to the suspension.

[bevis the lumberjack]

At the time, nothing was clear. It wasn’t clear that the states could be prohibited from leaving. All of this was new tests of an untested system.

Point is that in hindsight he violated the constitution to do it. Are you saying it would be ok if a president did that today?

[juris imprudent]

"It wasn’t clear that the states could be prohibited from leaving."

The Articles of Confederation had declared the Union in perpetuity, and the Constitution is silent - neither implying or expressly stating an exit option.

[Brett Bellmore]

At the time it was quite clear he couldn't do it, the power to suspend habeas was in Article 1, which branch of government did that refer to, again? "Not yet litigated" DNE "not clear"!

What was it Lincoln said in response to Taney?

“Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated? Even in such a case, would not the official oath be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it?”

Oh, he knew he was violating the Constitution. There's no question at all that he knew.

[Bob from Ohio]

The Constitution is not a suicide pact, Lincoln was just anticipating Justice Jackson's comment.

[Brett Bellmore]

I've always hated that "suicide pact" argument, because it really means the opposite of what it says. It says, "The Constitution is not a suicide pact!", but what it means is, "The Constitution IS a suicide pact, let's break it!"

[Krychek_2]

An originalist interpretation of the Constitution would quite likely be suicidal, which is why originalists better pray that they never actually get it.

[Noscitur a sociis]

“Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated? Even in such a case, would not the official oath be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it?”

Now do Roe v. Wade!

[Bob from Ohio]

"Supreme Court ruled the President couldn't suspend Habeus Corpus unilaterally"

It was not the supreme Court, it was just one justice. The full court has never considered the issue.

[Brett Bellmore]

There are a lot of issues that never get litigated just because nobody has had the gall to advance an argument that obviously wrong. Taney was right about this, and with absolute clarity: The Habeas clause is in Article I, case closed.

[Bob from Ohio]

Placement is not decisive. It does not say whom may suspend it.

Case open.

[Brett Bellmore]

Nothing is ever decisive if people are absolutely determined to be unpersuaded; It's not like language can reach into your skull and impose beliefs.

No reasonable person thought otherwise, and see that Lincoln quote: Not even Lincoln thought he wasn't violating the Constitution by doing it. He just claimed he had a good reason for violating it. And who ever claimed to not have a good reason for breaking the law?

[Sarcastr0]

bevis - it wasn't the habeas part (though I do think most have forgiven Lincoln for that in light of the context).

The recognition of West Virginia was pretty wacky, with lots of people offering on one side and then crossing the soon-to-be border and accepting for the other side. It's a remarkable story, and pretty invalid if you look at any cannon of fair dealing.

But also it doesn't matter given the long practice - anyone arguing this is more than trivia and West Virginia isn't real is a crank at this point.

[bevis the lumberjack]

I wasn’t arguing the West Virginia part. I wasn’t expressing an opinion on Lincoln. I was contesting the assertion that the only constitution busting done back then was done by the CSA states. There was plenty to go around.

[Sarcastr0]

On a purely formal level, sure. And it's good to point out that nothing is unalloyed, including The Great Emancipator.

But on any kind of functional level, it's quite black and white which side was upholding the Constitution and which was not.

[bevis the lumberjack]

Goddamn. Neither side was upholding the constitution, notwithstanding your attempt to excuse Lincoln and his cabinet.

[Sarcastr0]

I think that's your Texas talking.

The magnitude of seceding to continue to own people versus suspending Habeas against a newspaper without going through Congress is incomparable.

The way you can tell is Lincoln's side won, and the Union and Constitution remained. In the counterfactual, that's not the case for a great deal of the country.

[bevis the lumberjack]

Yeah, habeas corpus is the central core of physical freedom. No biggie if one guy just yanks it away from whomever he chooses. Very Putinesque. If Trump had temporarily done that over, say, the George Floyd riots I’m sure you’d have cut him some slack. Or if you prefer Nixon in the ‘60s. Hell, Wilson basically did it in the 1910s and it’s widely regarded as a very dark time in our history.

Another example - the trial of the Lincoln “conspirators” was a constitutional nightmare.

There were no angels running governments on this continent in the 1860s. The confederates were no saints either. But don’t act like it was all one way.

[Sarcastr0]

You have to spin this away from the actual history into things that never happened because in the real world the effect wasn't anything like that.

[juris imprudent]

We're also overlooking the "adjustments" in Texas (per the boundaries of the Republic and what it claimed) and the state of Texas (and parts of New Mexico, Colorado, Kansas and Oklahoma) created out of that.

[Brett Bellmore]

The context was his imprisoning the editor of an opposition newspaper for running hostile editorials, in an area where combat wasn't taking place, and the courts were functioning. So, no, I don't think most people would consider the context particularly forgiving, if they thought about it.

[Sarcastr0]

The context was a fucking Civil War. One which we emerged from not just as survivors, but more perfect than we were.

Was this a bad move? Yeah. Was it in a universe full of *vastly* worse moves going on at the same time? Absolutely.

That's the context of why no one gets hung up on the Habeas suspension, Brett.

[M L]

"The context was a fucking Civil War."

It was actually not a (lowercase) civil war according to the typical definition, because a civil war is a war between opposing groups within a nation for the control of that nation.

[Sarcastr0]

No, weirdo.

A civil war is any war between citizens of the same country.

[M L]

No it's typically distinct from a war for independence, but sure you can define it that way. The Revolutionary War was a civil war too then, right?

[Reallynotbob]

Debating the important points. /s

[M L]

Interesting bit here:

"In 1862, Halleck asked the German American political scientist Francis Lieber to draw up a military code to guide the conduct of Union troops. The result, as John Fabian Witt details in Lincoln’s Code (2012), became the foundation for the modern laws of war. “Civil war is war between two or more portions of a country or state,” Lieber wrote, “each contending for the mastery of the whole, and each claiming to be the legitimate government.” The precise details in this definition justified the Union’s stated position that the South was in rebellion: The conflict didn’t count as a civil war because the South wasn’t “contending for the mastery of the whole.” "

https://newrepublic.com/article/144603/war-civil-war-revolution

[Sarcastr0]

What are you arguing for now?

Some 160 year old German-American's thoughts are dispositive of modern definitions?

[M L]

Not really "arguing" either way. The article is about a book that "tracks changing definitions of civil war, from Ancient Rome to the American Civil War to now."

[bevis the lumberjack]

The habeas suspension was not the only thing done by the Union side.

[bernard11]

The habeas suspension was not the only thing done by the Union side.

True. Winning the war was another.

[Harvey Mosley]

Look at Sarcastr0 playing whataboutism.

[Sarcastr0]

Whattaboutism would be if I argued Lincoln never violated the Constitution. But I didn't say that, instead saying: "Was this a bad move? Yeah."

[Hugo S. Cunningham]

US Constitution, Article 1, Section 9:
"... habeas corpus shall not be suspended, unless when in case of invasion or rebellion the public safety may require it." Lincoln certainly faced rebellion from secessionist insurgents blocking access to the Capital through Baltimore MD. But, since the suspension of habeas corpus appears in Article 1 (Congressional powers), it is now understood that a President needs validation from Congress as soon as Congress can return to session.

[Brett Bellmore]

Now and then. Even Lincoln didn't dispute that he WAS violating the Constitution, he just claimed he had a good excuse.

[Krychek_2]

It's a bit tough for Virginia to argue that its constitutional rights were violated after it has already seceded from the union.

[Brett Bellmore]

It's a bit tough for the union to claim that mattered when they claimed that Virginia couldn't secede, and was still a part of the federation.

They were continually having it both ways: Treating the Confederate states as actually having seceded for one purpose, treating them as still part of the federation for other purposes, as convenient. Such as not counting the seats of the Confederate states when calculating a quorum in Congress.

[Krychek_2]

Like I said below, it's like a contract. You can't breach, and then complain that the other side isn't performing.

Whether or not there actually was a secession from a legal standpoint, there's no doubt that the Southern states at least attempted to breach.

[ragebot]

Truth be told Virginia tried AND FAILED to secede from the union while WV succeed in seceding from the union.

Riddle me this Batman; if Florida claimed to secede from the union and North Florida, Central Florida, South Florida, and the Florida Keys (in fact the Florida Keys have claimed to seceded from the US and formed the Conch Republic) all then claimed to form individual states what would your opinion of that be.

Three of the four potential new states would have a population larger than some existing states as well as all four having very different political leanings.

From a wider viewpoint the same is true for many other states. In fact there are more registered Republican voters in CA than the population of all but a tiny number of states.

[Krychek_2]

I think that once a state has seceded, it can't claim constitutional rights. It's somewhat analogous to a contract; once one party breaches, it cannot then complain that the other side has breached. So, if Florida actually did secede, and Congress agreed to it, I probably wouldn't have any constitutional objections to the new states being added. I'd think it was bad policy but that's a separate question from whether it's constitutional.

[defaultdotxbe]

Of course the seceding states claimed it was the federal government that had breached, by failing to enforce the fugitive slave act.

[Krychek_2]

Right, and I once had a client charged with domestic violence who had twisted things around in his own mind to where he thought it was his wife's fault that he hit her.

The idea that there is a right to require other people to help you re-kidnap and re-enslave people is so bizarre that I'm not sure even the South took it seriously.

[Area Man]

That's a valid argument from an "unclean hands" perspective. But in Texas v. White, 74 U.S. (7 Wall.) 700 (1869), the Supreme Court ruled that the confederate states never actually seceded.

I think the better argument has always been that, since West Virginia stayed loyal to the Union, it is actually the legitimate Virginia, and thus it's West Virginia's rights that were violated when it lost its southeastern territory.

[Vandalia]

No. It was perfectly Constitutional.

To create a new state - West Virginia - out of the state of Virginia required the consent of Virginia. The (restored) government of Virginia consented to the creation of West Virginia.

The state of Virginia was always a part of the United States. It is Constitutionally impossible for it not to be. However, when the government of Virginia voted to secede, they - by operation of law - lost their offices. Since there was no functioning government of Virginia, the people of the state had the right to nominate and elect a Governor, legislature, etc. The "restored" government of Virginia.

[ragebot]

I have to point out that everything you posted is based on the fact that the Union won the Civil War. If the Union had lost I have little doubt WV would have been eliminated as a state and absorbed by VA.

Seems I remember reading something like 'winners write history'.

[Bob from Ohio]

The US only exists because it won its Revolution. So its "winner's history" all the way down.

[Sarcastr0]

Military might can confer some abilities; it takes more than that to confer legitimacy.

Though legitimacy has never been anything you seem to understand.

[Vandalia]

And if the Soviet Union won the Cold War, Virginia would be a commissariat. Your point?

[bevis the lumberjack]

If the south had one West Virginia would have stayed with the union. There would have been no mechanism by which Virginia could reabsorb West Virginia, unless you think they’d have done it by force.

[ragebot]

Playing the what if game if the South had won (or even if the South had one) that sorta means it could have marched into WV and claimed it was part of VA claiming it by force. Not to mention the South might well have marched into other states and claimed them as part of the South.

[bevis the lumberjack]

Spellcheck got me. Crucify me for it.

The south was never gonna win clean on the battlefield. Way overmatched in terms of men and equipment. A southern win was going to be a negotiated settlement with the north letting it go due to fatigue among the population. That possibility probably ended when Lincoln beat McClelland in ‘64.

[EscherEnigma]

If the Confederacy wasn't okay with forcing people into an association they didn't want to be in, the Confederacy wouldn't have seceded in the first place.

So I'm not sure why you think this is unthinkable: enslaving others was literally the reason the Confederacy existed.

[Davy C]

I mean, one can imagine an outcome where neither side can really win entirely but the confederacy can't realistically hold on to that territory by force and Virginia is willing to give it up to get independence. Who knows?

[Sarcastr0]

Yeah, it was hinky as hell.

But also who the heck cares? Formalities from 150 years ago can take a back seat to actual current function, in which we have 2 pretty distinct states.

[Brett Bellmore]

I care, because lately I've seen people trying to assert that precedents from that time are still binding.

[Sarcastr0]

Feel free to care, but good luck getting anyone else to.

Because the precedent is that West Virginia is a distinct state.

It's a fun story; that's all it is.

[MaddogEngineer]

Not really. When the government of Virginia purported to secede, they ceased being the legitimate government of the state. Subsequently the loyal western region of the state organized itself as the legitimate government (recognized by the federal government) and consented to the creation of West Virginia.

A bit hinky and self-serving? Sure. You just can't confuse the state governments which purported to secede with continuing to be the legitimate state government. Absent the consent of Congress, attempting to act on secession is an act of governmental suicide, leaving such a state with no government, but it does not change the state's condition as continuing in the Union.

[M L]

"When the government of Virginia purported to secede, they ceased being the legitimate government of the state."

No, they didn't.

[MaddogEngineer]

I saw what you are arguing below. The history of Reconstruction says otherwise. You can perhaps argue that the victors right the history, but then you'd also be confirming my point.

As Lincoln made clear up until the point the outcome of the war became obvious, the federal government would have resumed recognition of the legitimacy of any purportedly secessionist state government, if it renounced secession and resumed its loyalty to the Union.

[MaddogEngineer]

*write not right

[M L]

I'm not sure what your point is. If the Constitution does not prohibit secession, then how was the Constitution violated? And if the Constitution does prohibit secession, then Virginia was still a State, and where does the Constitution allow for the creation of a new state from its territory, without the consent of the Virginia legislature?

[David Nieporent]

They had the consent of the Virginia legislature. Not the former, treasonous Virginia legislature. The then-current Virginia legislature.

[M L]

Like I said, the federal government unilaterally disregarded the Virginia legislature and chose to recognize an alternative legislature.

Although, looking into it more, actually it's worse than that. They didn't even pretend to recognize the WV legislature as being the Virginia legislature. The WV legislature was only recognized as the new WV legislature. They argued that the Virginia legislature could be disregarded because of secession (which isn't prohibited by the Constitution).

[David Nieporent]

Like I said, the federal government unilaterally disregarded the Virginia legislature and chose to recognize an alternative legislature.

Like I said, that legislature no longer existed. They had abandoned their position as the government of the state.

They didn't even pretend to recognize the WV legislature as being the Virginia legislature.

No; it wasn't the WV legislature. It was the Restored Government of Virginia. That was recognized as the legislature of Virginia; that legislature then consented to the division of Virginia.

[M L]

"Like I said, that legislature no longer existed."

And yet, there they were, existing.

[DRM]

Complicated, in the sense that they just outright violated the Constitution in that case.

Not true.

Under the US Constitution, members of a state legislature face a requirement that they be under oath or affirmation to uphold the US Constitution (Article VI, Section 3). Of the two bodies claiming to be the legislature of the State of Virginia in 1863, only the one in Wheeling had members who were in compliance with that Constitutional requirement.

The other body, in Richmond, however legitimate its claims of historical continuity with the pre-secession legislature, could not be the legislature of Virginia for purposes of the US Constitution, because none of its members met the Constitutional requirement to be a member of a state legislature.

Accordingly, the consent of the only body that could qualify as the state legislature of Virginia for purposes of the US Constitution in 1863 was actually secured, meeting the requirements of the US Constitution.

[M L]

In what way was the Virginia legislature not bound by oath or affirmation to support the Constitution?

To be clear, in your view if a State allegedly violates the Constitution, can the President appoint a new legislature for that State?

[MaddogEngineer]

Now you're just being silly. Who has suggested the president can appoint a new legislature for a state? That's not what happened.

The legislature in Richmond consisted entirely of people who specifically renounced their support for the U.S. Constitution, and swore and oath to another.

I assume that no secession convention members ever swore an oath to support the U.S. Constitution, given their mandate to decide. Unless there were fresh elections before the next meeting of state legislatures, that means that all those sitting members broke their existing oaths.

[M L]

I should have said, Congress. Though Lincoln officially recognized West Virginia before it was even admitted.

Can Congress disregard the existing legislature of a State if they are . . . not in compliance with the Constitution? And recognize an alternative legislature instead?

That doesn't seem to make sense. Lincoln's own Attorney General argued forcefully that this plan was unconstitutional and violated fundamental principles.

The fact that they "specifically renounced" their support may be closer to relevant. It seems to me a reason Congress could disregard the Virginia legislature is that they were no longer a State under the Constitution, because they had seceded.

[OtisAH]

Regardless whether consensual secession is allowed, consent will not be given. So the answer remains “no.”

[BravoCharlieDelta]

Just like the Senate's consent to Garland for SCOTUS. lol amirite?

[OtisAH]

No, numpty, nothing like that at all. Not even remotely related in any way.

[BravoCharlieDelta]

The answer remains "no".

[M L]

I heard if you don't consent, that is "stealing" a SCOTUS seat. So if you don't consent to secession, that must be subjugating the seceding polity, or something.

[Krychek_2]

I don't recall anyone, including those who think the seat was stolen, saying that the issue was lack of consent. The issue was lack of a vote. Had there been a vote, and had the vote been no, nobody would have had any grounds to complain.

[BravoCharlieDelta]

There's no constitutional requirement to vote, though.

[Sarcastr0]

There's no constitutional requirement the Court be 9 seats either.

Nothing, no law, no Constitution, no treatise, can include very exigency. Lots of things are unwritten, but nevertheless load-bearing norms.

Hiding behind 'it's okay - noting says this is illegal' is the behavior of people who know they're fucking around.

[M L]

Would you say that the California legislature ought hold a vote on a secession request?

[Sarcastr0]

I'd say it depends.

[Krychek_2]

I'd agree with that, and I would go further and say that what it depends on is the reason for secession, the likely amount of public support for it, the likely damage secession would cause. I can see some circumstances in which secession would be a legitimate option, though not these circumstances.

[BravoCharlieDelta]

Wait, people actually think not holding a vote on Garland was illegal?

The Senate Majority Leader speaks for the Senate. The Senate refused consent.

What about load-bearing norms like not raiding political opponents and previous Presidents?

[Krychek_2]

No, no one is claiming that not holding a vote on Garland was illegal. Try again.

And no, the Senate Majority Leader does not speak for the Senate; otherwise why have any votes at all? Just let Chuck Schumer decide everything.

[Sarcastr0]

Wait, did you read what I said? Because it's the opposite of your interpretation!

[Squirrelloid]

Except Garland was hardly the first SCOTUS nominee who never received a vote. I would be tempted to say *not having a vote* was the actual norm for rejecting a SCOTUS nominee.

[JEP41]

The stated rules seem to apply to an attempt to secede to become part of another state, or to become a new state.
Could a state secede to become a stand alone "territory", without the approval of the state government and/or the federal government?

[JEP41]

When I said, "Could a state secede ...."; I should have said, "Could a geo-political entity (such as a city) secede ....".

[Krayt]

At a minimum I would expect a supermajority of the local population, in addition to permission of the state or Congress as appropriate.

A simple majority, born of the blowing hot air of demagogues, have no right to drag the other 49% away from the protections of their state and federal constitutions.

Remember that democracy AKA the vote, is just an abstraction of migbt makes right, and a large mob of brutes have no more theoretical power to take away your rights than a large minority, or small minority. They are inaliable and inherent, and are not a gift from anyone, not the government, not the rich or powerful, not even The People themselves.

[Krychek_2]

I note this is about them getting their fair share of state and federal resources. Typical, bloody typical. Republicans scream to high heaven about big bad government, while continuing to suckle at the big bad government's teat.

[Armchair Lawyer]

You realize than San Bernardino County is majority Hispanic, right?

[Krychek_2]

And there are no Hispanic Republicans?

I also realize that in the last election San Bernadino County voted 54% for Joe Biden. But overall, it's a relatively conservative part of the state, and my point that it's typical of conservatives to complain about big bad gummint even while they line up for federal money stands.

[Armchair Lawyer]

Listen... If you're arguing "Typical, bloody typical. Republicans scream to high heaven about big bad government, while continuing to suckle at the big bad government's teat."

In a county....which is majority Hispanic....which voted for Biden by a majority in the last election....

Maybe...just maybe....You may need to re-examine your views...

[Krychek_2]

Do you dispute that relative to the coastal areas, San Bernadino County is more conservative? What were Biden's numbers in LA and San Francisco?

[Armchair Lawyer]

You can argue "relative" for many things. "Relative" to DC, San Francisco or New York are more conservative. But if you start arguing that San Francisco or New York are "conservative" or "typical Republican"....that foolish.

Likewise, arguing San Bernadino County is "conservative" or "typical Republican" is foolish if you need to make the comparison relative to San Francisco in order to make your point, especially when they vote majority for Biden.

[Krychek_2]

I just looked it up. San Bernadino County tends to vote Democrat for president by about 52-54%, but it tends to vote Republican for US House seats. So the most you can say about it is that it's a mixed bag.

[Armchair Lawyer]

Jesus...No.

I love how you go from "Typical, bloody typical. Republicans scream"
To a "mixed bag"...district.... Which isn't really accurate either

Here are the actual 2020 election results. If you add it up, you'll see that the county vote for Democratic Representatives by approximately 80,000 net margin.

https://www.sbcounty.gov/rov/elections/results/20201103/

Just admit you were wrong. You made a mistake. And let it go.

[Krychek_2]

Did you also check 2018, 2016 and 2012 for Congressional races in SB County? I did. A single data point does not prove your point.

[Armchair Lawyer]

Did you now....

Go ahead. Show your work. Post your links. Put your numbers down to demonstrate that SB county is a conservative hotbed of typical Republican sentiment.

[ragebot]

Lots of peeps contend that the popular vote in states like CA and NY does not reflect the true sentiment of the total population because lots of pubs know the dem candidate will win and it is a waste of time for them to vote. Even so Trump got more popular votes in CA (a state he lost) than in TX (a state he won) in 2020. Even so with about thirty million adults in CA the total vote was over 16 million so just over half the potential voters actually voted.

[Eugene Volokh]

I'm not sure it's wrong for either Republicans or Democrats to want a fair share of state and federal resources, though they may disagree on what resources the state and federal governments would provide. But in any event, the County voted for Biden over Trump by 54.20% over 43.54%, and while the Board of Supervisors is ostensibly nonpartisan and I couldn't find the details on all their outside party affiliations, I assume they know their voters, and expect that there'd be a substantial amount of support for secession on both sides of the aisle.

[Krychek_2]

It may not be "wrong" but there is a certain amount of hypocrisy in saying I hate the feds, now gimme federal money. Democrats at least don't claim that the federal government is evil before taking federal money.

[M L]

If your town builds a $10 million playground or a $100 million highway and you opposed it because it was a waste of money, you now can't use the playground or drive on the highway even though you paid for it?

[Krychek_2]

There's no additional cost to the town if I use or don't use the highway or playground. There is additional cost to the treasury if the fed-hating red staters take federal money.

[M L]

There is additional cost as use of the highway contributes to its wear and tear.

If your town decides to provide free ice cream to everyone attending the summer festival and you oppose it because it's a waste of money, now you can't obtain the free ice cream even though you are paying for it?

[Krychek_2]

Unless I'm driving a fleet of trucks, my one vehicle is not going to significantly contribute to wear and tear on the highway.

And if I had loudly and noisily argued that free ice cream was a waste of money, I would not then be caught taking free ice cream, if for no other reason because the optics of it would be terrible. Because when the issue came up again, and I argued against it, the result would be everyone pointing and saying "What a hypocrite."

[M L]

It's no more hypocritical than using a playground or a highway that your taxes helped pay for. You are trying to argue this point because it is on your side politically, but it's an exceptionally dumb talking point. The federal government takes your money either through taxation directly or through inflationary money creation which is an indirect tax. And then your political enemies get those trillions of dollars that they stole from you, and you can't get your share because, if given the choice, you would rather scrap the whole ridiculous scheme or reduce its scale? This is too dumb to discuss seriously.

[Krychek_2]

Because if I don't use the highway, what other option to I have to get from one place to another? Grow wings and fly?

Unlike taking free ice cream, where not taking it simply means I have to buy my own.

And no, it's not a dumb point. If Republicans took federal money for necessities, like highways, that would be one thing. But they don't. They take it for pork. They are just as lavish at spending as Democrats are.

[M L]

You can take other roads, the ones that were there before new highway was built.

I agree that most Republican politicians are bad on spending and are often hypocrites. But again there is nothing hypocritical about opposing something, voting against it, but then once it's a done deal and you lost, receiving what you are entitled to and expecting your fair share of the program you are paying for.

[Armchair Lawyer]

"There's no additional cost to the town if I use or don't use the highway or playground. There is additional cost to the treasury if the fed-hating red staters take federal money."

Jesus...no. This is San Bernadino County. Majority Hispanic. Within California. Voted for Biden by a majority. Voted for the Democratic Representatives by a majority.

You can't call them "Fed-hating red staters"...when they vote Democratic like this. It's just wrong.

[Krychek_2]

Except that if you pay close attention, the original subject of the thread has drifted from San Bernadino to fed hating red staters in general. This is no longer just a conversation about San Bernadino County. Go back, re-read carefully, you'll see that.

[Krychek_2]

I also would not necessarily assume that this is an accurate reflection of public sentiment. In many place, primaries (both D and R) are controlled by the extremist wing of the party, and moderates have a tough time getting elected. You saw what happened with abortion in Kansas; it turns out the extremist anti-abortion politicians are not an accurate reflection of their voters' values after all. I guess we'll find out for sure if it really does make it to the ballot.

[Squirrelloid]

idk, i can believe San Bernadino hates being ruled by LA and the Bay Area.

[Armchair Lawyer]

All that's fair.

Although, several North California counties would actually prefer to leave and join Idaho. As would several Oregon counties.

[KenveeB]

Everyone but anarchists agree that there is SOME function for government and government resources, it's just a question of how much and for what. It's not inconsistent at all to complain that other areas are taking so many government resources for improper reasons that there aren't enough resources for your proper ones. I can think that governments should be limited and only go to roads and completely consistently complain that your spending tax dollars on art foundations means there's no money for roads.

[Variant]

I'd not mind SB County becoming part of Arizona, but could also tilt Arizona further blue.

[Hugo S. Cunningham]

There was a thoughtful referendum proposal for the California ballot a few years back (eventually blocked by the State supreme court), to consider dividing California in three: (a) "North California", the Bay Area Sacramento, and points north, likely to vote progressive; (b) "California", the heavily populated coastal belt from Greater LA northwestward to Monterrey, likely to vote progressive; and (c) "South California", the San Diego coastal area northward to the dry interior and the Central Valley, voting competitive. The idea of an independent South California able to vote for sane water and power infrastructure lost some of its allure, however, when it was realized that nearly all the prime tax revenue came from the two progressive areas.

[ducksalad]

Can a state legislature expel one of the state's counties, assuming the state constitution doesn't prohibit it? Or does that violate equal protection?

If it does violate equal protection, why wouldn't consenting to a removal still violate equal protection?

[Suudy]

There's a movement in Eastern Oregon to join Idaho and create "Greater Idaho."

http://www.greateridaho.org/

Not gonna happen, even if there were no legal barriers.

https://www.oregonlive.com/opinion/2022/05/opinion-greater-idaho-effort-wont-prevail-but-we-should-hear-movements-message.html

I imagine the same for San Bernadino County. There's pensions, state owned land, debt, etc.

[Armchair Lawyer]

Bigger problem there is, what state would San Bernadino join?

[M L]

Relatedly, the Constitution does not anywhere forbid the secession of a State from the Union. No such provision, nor any unstated understanding to that effect, would have been countenanced by the framers.

Accordingly, in a statements that scarcely needed to be made, a number of states specifically mentioned in their ratification documents that a right to secede was retained:

New York (emphasis added) --

"We, the delegates of the people of the state of New York . . . . Do declare and make known, —

That the enjoyment of life, liberty, and the pursuit of happiness, are essential rights, which every government ought to respect and preserve.

That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness; that every power, jurisdiction, and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several states, or to their respective state governments, to whom they may have granted the same; and that those clauses in the said Constitution, which declare that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not given by the said Constitution; but such clauses are to be construed either as exceptions to certain specified powers, or as inserted merely for greater caution."

Rhode Island --

"We, the delegates of the people of the state of Rhode Island . . . . do declare and make known,—

III. That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness."

Virginia --

"WE the Delegates of the people of Virginia . . . . DO in the name and in behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them and at their will"

These documents were accepted by the other States without objection with regard to these secession caveats, meaning they all accepted the concept of secession as a given. No State within the compact has any more or fewer rights than any other, and any of them could secede. As was later noted in 1860, if the Constitution had forbade secession, it would have never been ratified.

Of course, one can argue that the effect of the War Between the States was to "settle" the issue or in other words to CHANGE the Constitution on this point (and perhaps others) by force and bloodshed and not by any voluntary consent of the governed.

[Sarcastr0]

Why some losers keep tryin to refight the Civil War I don't know.

Your...questionable interpretation of 'reassumed by the people' aside, the reality today is this: the secessionists lost; slavery got abolished; the Union is indivisible.

Try again at your own peril.

Or just keyboard yell about it all you want at a peril only of being mocked as a crank.

[M L]

You don't know why some people are interested in the original meaning of the Constitution on an important issue that always comes up again and again?

Sorry, I don't believe you.

But your tactic of responding with personal attacks and insults, threats of violence, mocking, and "I don't know why you even care about this" -- because you presumably don't have any better response -- is telling. Not surprising but telling.

[Sarcastr0]

You aren't arguing meaning, you are arguing intent of the ratifiers.

You can argue such arcane formalities all you want. Just as all other avenues of originalist delving they are endlessly debatable, and thus not conclusory except regarding what the delver wants to find.

But as I'm sure you have experienced in this blog and beyond, no one is going to really give you the time of day since the Civil War renders your argument academic at best, and quixotically seditious at worst.

[M L]

The intent of the ratifiers is the single most substantial evidence of the meaning.

But by all means, tell us, which provision of the Constitution forbids secession? The prohibitions on the States are listed in Article I Section 10, but I don't see it in there.

You would like to handwave and say the issue is "endlessly debatable" but in fact it's a rather short and conclusive debate relative to some constitutional issues.

"the Civil War renders your argument academic at best"

Hah! If all moot or "merely academic" questions were removed, say goodbye to 98% of law school and legal academia.

[Sarcastr0]

If your question is merely academic curiosity, you have a weird way of presenting it.

Your angels dancing on the head of a pin read into a statement in state constitutions that is not at all clearly a reservation of the right to secede does indeed show how little of this is empiracle and how much of it is you wishcasting for the end of America because you are a deeply unhappy dude.

[M L]

These excerpts are not from state constitutions. They are from the original ratifying actions/documents of the states.

Either way, there's simply nothing in the Constitution that forbids secession, and there's a plethora of evidence that everyone back then thought that secession would be permitted.

Article 1 Section 10 lists prohibitions on the States. Secession is not mentioned. The 10th amendment makes clear that the States may do anything not prohibited.

If secession were not permitted or worse, constituted treason, then why didn't anyone object to the ratification documents explicitly mentioning the right of secession?

Aside from the ratifying documents, another point is that the States, after seceding from Great Britain, also seceded from the Articles of Confederation. The ratification terms of the Constitution were such that it allowed that some number of states would secede from the Articles and ratify the Constitution, while others would decline to ratify the Constitution and remain in the Articles. If secession were not permitted, or even worse, constituted treason, why didn't the anti-Federalists say anything?

When Thomas Jefferson was elected in 1800, there was much discussion of secession among Federalists which continued under Madison until 1815. No one called them traitors or said it was illegal. Instead, Jefferson said, "If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it."

Jefferson of course wrote on the subject on a number of occasions, all clearly defending the right of secession. "If any state in the union will declare that it prefers separation with the 1st alternative, to a continuance in union without it, I have no hesitation in saying, ‘Let us separate.’ I would rather the states should withdraw, which are for unlimited commerce & war, and confederate with those alone which are for peace & agriculture. I know that every nation in Europe would join in sincere amity with the latter, & hold the former at arm’s length by jealousies, prohibitions, restrictions, vexations & war."

[SMP0328]

Since at least 1865, the only way for a State to secede from the Union is:
1 - a Constitutional amendment permitted such; or
2 - being on the winning side in a civil war or revolution.
We all learned this when we were kids.

[M L]

What if the then-President allowed for the possibility of peaceful separation, was willing to meet with the delegation to discuss terms rather than refusing to receive the delegation, declined to declare war on the State for seeking independence, did not call up an army to collect the duties and imposts?

What if, upon a State wanting to secede, there was no popular political will among the rest of the nation to go in and slaughter them for their audacity?

Regardless of political reality and hypotheticals, the question remains: did the Constitution permit a state to secede? All signs from the founding era seem to point to yes. If your answer starts with "Since 1865" does that mean that the war changed the meaning of the Constitution by force?

[David Nieporent]

Relatedly, the Constitution does not anywhere forbid the secession of a State from the Union. No such provision, nor any unstated understanding to that effect, would have been countenanced by the framers.

Yes, the Constitution does in fact forbid the secession of a state from the union — or, rather, forbids the unilateral secession of a state from the union. We've been over this many many many many times here.

[M L]

Which part of the Constitution forbids secession? How do you explain away the clear evidence that a right of secession was universally recognized at the time of the founding, and a prohibition on it would have been laughed out of the convention?

[David Nieporent]

Which part of the Constitution forbids secession?

Article 6 Section 1 (the Supremacy Clause) forbids secession. Article 6 Section 3 requires all members of state governments to take an oath to support the Constitution. Article 4, Section 4 requires the federal government to guarantee each state a republican form of government. Article I Section 8 grants Congress the power "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." Article 3 Section 3 declares it treason to make war against the U.S. And, of course, there's the fact that the Articles of Confederation declared a "perpetual" union, and the Constitution was intended to make it "more perfect."

How do you explain away the clear evidence that a right of secession was universally recognized at the time of the founding, and a prohibition on it would have been laughed out of the convention?

Simple: you're mistaken. Nobody (let alone everyone) recognized a right of secession. You're making the common mistake of conflating a legal right to secede with the natural right of revolution. The latter is what the colonies asserted in the DoI. They weren't claiming that they had a legal right to secede from Britain; they were claiming that they had a natural right to rebel against an unjust government.

[M L]

The Supremacy Clause doesn't forbid secession. It just says federal laws take precedence over laws of states who are members of the union. Neither do any of the other provisions you cited.

The framers did not assert a natural right to dissolve political bands, only to turn around and create a new structure in which this most basic natural right was now made illegal. That's absurd on its face and demonstrated by many facts. As described above, a number of states explicitly mentioned the right to secede in their ratification documents. For another example, states seceded from the AoC, which was also "perpetual."

"Perpetual" of course means, of indefinite duration. Nothing more. The AoC was perpetual. Corporations are perpetual.

[mydisplayname]

The alternate mechanism of approval -- consent of the legislatures of 75% of States -- might actually work in this instance: honestly, how many State legislative bodies would say "no"?

Population density and distribution [as well as the need to eat, drink, clothe, and transport] is working against the remaining "blue" pockets: it is becoming increasingly more probable to find agreement among the legislative bodies of 3/4 of the States and less probable to find agreement in Congress.

[F.D. Wolf]

One related question is whether Texas can divide itself into five states. As noted by Prof. Volokh, this would naturally require the consent of the state and of Congress. The resolution admitting Texas as a state contains the following language:

New States of convenient size not exceeding four in number, in addition to said State of Texas and having sufficient population, may, hereafter by the consent of said State, be formed out of the territory thereof, which shall be entitled to admission under the provisions of the Federal Constitution.

So, arguably, Congress has already given its consent, and only the consent of Texas would be needed. One counter-argument might be that the provision is invalid because it did not place Texas on "equal footing" with other states upon its admission. Coyle v. Smith, 221 U.S. 559 (1911) (Congressional admission provision forbidding Oklahoma from moving its capital was invalid).

[Voize of Reazon]

Haven't those four other states already been formed?
The original territory of the Republic of Texas formed or contributed to the states of Texas, Oklahoma, New Mexico, Colorado, and Wyoming.

[ragebot]

Maybe the bigger issue is why there is so much discussion about states or portions of states wanting to change the status quo.

Back when the states formed the US there were not a lot of peeps who were against individual states forming a new nation and those against it either voted with their feet of fought for the losing side.

As I noted in an earlier comment Trump got more votes in CA (a state he lost) than in TX (a state he won). When a guy running for prez gets more votes in a state he lost than any other state it something seems wrong with that many peeps disenfranchised.

Even the most jaded analysis has to admit in what is close to a 50/50 country when close to half the population has to submit to being governed by a little over half of the population there is not likely to be a happy ending.

[EscherEnigma]

Let's just get started on a constitutional amendment relating to the rights and responsibilities of states and territories, and the process and procedures by which states and territories can merge, break-up, and secede.

Think of it like divorce law: even if you don't think folks should divorce, it's eminently preferable that folks have the option to divorce, so they don't reach for the option of being a widow(er).

My personal preference would be that congress's role of granting consent would be limited to verifying/validating that the state/territory has followed procedure correctly (thus removing their ability to approve/reject on partisan grounds), and that any state/territory seeking to change it's status (via secession, merging or breaking-up) must seek the consent of the governed (I.e., voter referendum) in two consecutive presidentials elections, both in the affirmative (that is, this shouldn't be a quick action of passion, but a consequence of long-term issues that are addressed by the change in status).

There would also be limits in place regarding size, probably somethign to the effect that the new state/states couldn't be in the top five states in population or territory, nor in the bottom five of either.

I imagine you would also need language specifying what the "default agreement" is in case of secession regarding debt and property, so that if the states breaking-up/seceding can't come to a amicable agreement with eachother/the fed, there is still an agreement. And if they don't like that, then there would be a process for reaching an agreement prior to the conclusion of the process.

And so-on.

In short (too late, I know), we need to critically look at this issue when it is just a few unserious hot-heads, so that when it becomes a large number of serious hot-heads we have family court ready to decide custody of the children.

[David Bremer]

I just wanted to chime in to note that on the same day as we hear Trump's critics [rightfully] act in amazement that some of his supporters are talking about the search of Mar-a-Lago prompting a second civil war, here we have a post about a liberal area wishing to explore secession.

Current events sure do seem to prove the horseshoe theory of politics.