Could the blue states secede?

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Nov. 5 2004 7:05 PM

Could the Blue States Secede?

Is there a legal way to opt out of the Union?

Even before Sen. John Kerry conceded defeat in the presidential election, some bitter blue-staters had begun joking about the possibility of seceding from red-state America. Which makes you wonder: Are there any provisions in U.S. law for a state to opt out of the Union?

No. But the legal situation wasn't always so clear cut. Before the Civil War, the legality of secession was an open question, and Southerners would frequently threaten that their states might ditch the fledgling nation. The legal argument, framed eloquently in the 1830 Senate debate between Daniel Webster and Robert Hayne, centered on the Constitution: Was it merely a treaty among the many states? Or was it the founding document of a singular country, a compact of the "people" cited in its opening clause? This legal argument, among other things, eventually begat the Civil War, and since it ended, scholars have agreed that the Constitution grants no right of secession.

Legal experts say that the "treaty" interpretation remains dead today, especially since, in the aftermath of the Civil War, the United States adopted the 14th Amendment, which included a definition of national citizenship, something conspicuously absent from the original. (Previously, citizenship had been defined exclusively by the states.) Today, the Supreme Court frowns on states conducting their own foreign policy and even ardent members of states' rights groups agree that the states have no right to withdraw from the Union.

Elsewhere in the world, however, secession is a live issue, and many democracies are at least somewhat open to it. Québec has long flirted with secession from Canada, for example, and the European Union's draft constitution provides a mechanism for states to leave it. Conceivably, the United States could amend its Constitution to include a similar process, but constitutional experts have not seriously examined whether it would be legally possible. Alternatively, international law would permit the United States to cede some states to another sovereign nation—say, Canada—through a treaty, but it is unclear if simple ratification by the Senate would pass constitutional muster.

Despite these formidable obstacles, there are nevertheless secessionist movements of various levels of seriousness in the United States: Residents in Alaska, Hawaii, and Texas have tried with some fanfare but little success to make their cases in recent years. Meanwhile, in Washington, Oregon, and British Columbia, there are groups that seek independence from the United States and Canada and hope to form the Republic of Cascadia.

Explainer thanks Bruce Ackerman of the Yale Law School and Lawrence Tribe of the Harvard Law School.

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