Neo-Confederate California and the Case for Secession
February 8, 2017

After spending eight years during the Obama presidency denouncing anyone who spoke favorably of secession or nullification as a “Neo-Confederate” with sinister motives, some Democrats and progressives are suddenly quite taken with the ideas now that President Trump is exercising the powers that he inherited from President Obama. There’s talk of California refusing to pay taxes to the federal government, and even a movement, being dubbed in some circles as “Calexit,” to have California secede from the United States.

This is blatant hypocrisy from progressives angry at losing an election, just as it was hypocrisy from conservatives when they talked about seceding after losing two elections to Barack Obama. That said, it’s becoming increasingly clear that breaking up the United States is the only way to maintain peace among Americans. Conservatives and progressives can no longer engage in their much ballyhooed democracy peacefully, because neither can abide being governed by the other. Secession is the only means by which the two groups can begin to live harmoniously next to one another.

Why should Californians who overwhelmingly supported Hillary Clinton over Donald Trump be governed by Trump just because Ohioans, Floridians, and Texans supported him over Clinton? The Constitution says that whoever wins the Electoral College vote becomes the President of the United States, and Trump won the vote fair and square. But winning an election doesn’t make the outcome right or desirable.

In 1803, Thomas Jefferson wrote a letter to John C. Breckenridge and described what I believe to be the proper attitude to take towards people who no longer wish to remain in a political union with one another.

The future inhabitants of the Atlantic & Mississippi States will be our sons. We leave them in distinct but bordering establishments. We think we see their happiness in their union, & we wish it. Events may prove it otherwise; and if they see their interest in separation, why should we take side with our Atlantic rather than our Mississippi descendants? It is the elder and the younger son differing. God bless them both, & keep them in union, if it be for their good, but separate them, if it be better.

There’s a reason that conservatives in the United States hate Representative Nancy Pelosi and Senator Chuck Schumer more than they hate Canadian Prime Minister Justin Trudeau, and that reason is that despite disagreeing with Trudeau on many issues they know that he has no power over their lives. Nothing Trudeau’s government does in Canada has any effect on Texas, so while Texans and Canadians may largely favor a very different role for government in their lives neither is forcing their vision on the other. This is the difference between a good neighbor and a bad roommate.

There is precedent for upending the existing political system and instituting a new one in American history, and there’s no logical reason that Californians, or anybody else, frankly, couldn’t do the same now. The United States was born when 13 British colonies declared themselves to be independent states and seceded from Great Britain in 1776, despite the fact that they had no legal authority to do so under the existing laws of Great Britain; and they did so again, despite having no legal authority to do so, in 1789 when many of the states seceded from the government established by the Articles of Confederation and entered into the new government created by the Constitution of the United States of America.

There is also precedent for the opposite, of course, as 11 states attempted to secede from the United States beginning in 1861 and form a separate government called the Confederate States of America, which led to the Civil War and their forceful return to the United States. This also prompted the Supreme Court decision in Texas v. White where the Court declared secession to be unconstitutional. From Chief Justice Salmon P. Chase’s majority opinion:

The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to “be perpetual.” And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained “to form a more perfect Union.” It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?

When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.

Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation.

Chase’s argument that unilateral secession by a State is unconstitutional rests on several fallacies. His biggest error, and the one that forms the basis of his argument, is when he claims that the States had formed a Union with one another from the very beginning of their existence, but ignores the fact that there were essentially three separate governments, or unions, that the States had been a part of: British America (The 13 original Colonies under the rule of Great Britain), the United States of America under the Articles of Confederation, and the United States of America under the Constitution of the United States. In other words, there was no single, overarching union binding the States together from the 17th-century onwards, but rather three distinct, individual governments that happened to encompass all of the States.

Chase’s argument is that the Union, meaning a single, never-ending union that continues even to this day, began when the States were Colonies under Great Britain in the 17th-century into the 18th. It’s fair enough to say that the 13 original Colonies were in a union of sorts, but only in the sense that they shared a relation to the British government and a close geographical proximity to one another. Absent the latter point they were no more in “union” with one another than any of them were with British India.

Chase then cites the Articles of Confederation and Perpetual Union as making the case that the States have been and must always be in a perpetual Union with one another, but that argument makes no sense in light of the fact that all of the States who were a party to the Articles of Confederation ultimately rejected that government and seceded to form a new government. So the “perpetual union” created by the Articles of Confederation was dismantled and non-existent after less than a decade of its official adoption. Furthermore, the fact that every State had rejected the Articles of Confederation and seceded from the government created by them meant that the Articles of Confederation and Perpetual Union had no force of law in 1861 when the southern states began to secede from the United States government. The Articles of Confederation ceased to have legal force in 1789 and could have no bearing whatsoever on the issue of secession in the 19th-century.

The U.S. Constitution required nine States to ratify it to go into effect, which happened in 1788 when New Hampshire became the ninth State to ratify it. However, that did not mean that the four States who had yet to ratify the Constitution were automatically party to the Constitution. Each State had to individually ratify the Constitution for themselves. The Constitution officially went into effect in 1789, but North Carolina and Rhode Island remained separate from the government created by the Constitution until they ratified it later. George Washington was sworn in as the first President of the United States while two States remained separate from the Union that Chief Justice Chase claimed in 1869 had been “perpetual” and “indissoluble” since the 17th-century. How could it be that Rhode Island and North Carolina remained separate, independent States outside of the United States of America if the Union had been perpetual and indissoluble all along? The answer is that they could not have, and Chase was creating a false history to justify his ideological position on the nature of the federal government.

Furthermore, when Chase states, “There was no place for reconsideration or revocation, except through revolution or through consent of the States,” he is making up rules for secession out of thin air. The Constitution does not discuss secession anywhere, and the 10th Amendment makes clear that all powers not explicitly granted to the federal government nor explicitly prohibited to the States remain a legitimate power of the States or the people. Since the power to secede from the Union is not prohibited to the States in the Constitution, nor is the power to stop the States from seceding granted to the federal government in the Constitution, the idea that the only ways to constitutionally secede from the United States are to wage a successful revolution against the United States government or to receive permission from the rest of the States was a figment of Chief Justice Chase’s imagination.

It is, however, Chase’s opinion, and not mine, that has won the day, and, at least at the moment, the only way secession will be looked on as being legitimate would be through an amendment to the Constitution. The problem is that an amendment explicitly enshrining the right of a State to secede from the Union has about as much chance of getting ratified as California does of simply seceding right now and Donald Trump wishing them a fond farewell.

If California were to secede, however, we might see history repeat itself. When Virginia seceded from the Union in 1861 not everyone in the Commonwealth agreed that it was for the best, and in 1863 many counties of Virginia seceded and rejoined the Union as West Virginia. There are many people in northern California and southern Oregon who have been agitating to secede from the two States for some time to form their own State, which they refer to as Jefferson, because they feel alienated and unrepresented by their current State governments. If California were somehow successful in leaving the United States there’s no reason that all Californians would want to leave, and it’s hard to see a scenario where the U.S. government would not welcome the inclusion of the State of Jefferson into the Union.

When the awful power of the United States government is put into the hands of people you find contemptible and whom you know will do things you find abhorrent, it’s perfectly logical to get angry and to even lash out with violence. That isn’t to justify the violence, but merely to point out that it makes logical sense. Given the power of the government over our lives, it’s no wonder that people react with rage when that machinery is taken away from them and given to people who may use it against them. The problem then becomes clear: the United States government is simply too big and too powerful, and the population is too diverse to be organized under a single political entity. The U.S. has one executive, nine judges, and 535 legislators making law for 321 million people, so how is it any wonder that people feel completely unrepresented?

This is why secession is preferable to remaining in a union with people who have so little in common with one another down to their fundamental values. Let the people who want to leave do so in peace and friendship to govern themselves as they see fit so that we may be given the same opportunity if it becomes necessary in the future. I would much rather be neighbors with a California governing itself and trading with me than be in a political union with a California that feels trapped and under siege by me. Unfortunately there are too many people who feel that the borders of the United States as they are currently drawn on the map are sacred, and these people are willing to use violence, or to sanction the use of violence by others, to maintain the status quo.