At the very core of our philosophy lies the principle of voluntary association. This means that people have the right to associate, not associate, or disassociate with other people or groups of other people. It also means that when any association exists, it exists on the principle of voluntariness. In other words, one cannot be coerced or compelled to be part of an association — it must be of free will and with consent.
The people of the United States, residents of the various states, are in association with one another, insofar as an association is a group of people united because of their common interests. And common interests we have: establishing justice, insuring domestic tranquility, providing for the common defense, promoting the general welfare, and securing the blessings of liberty, as the Preamble to our Constitution reads, are just a few of them.
However, no person alive today has given consent to being a part of this association even though the authority and legitimacy of government lies in the consent of the governed. Instead, this association is something we have all been born into, automatically granted official membership by birthright (citizenship), and are thus subject to the association’s rules and laws with no escape other than by relocating to a foreign land and renouncing our citizenship.
While such extreme measures can be taken by an individual who truly desires disassociation, a body politic, the collective “people” in “we the people” cannot all opt to abandon the society into which they were born and settle in a foreign land. Therefore, YesCalifornia believes that the people, collectively, have the right to disassociate themselves from the United States and that the people of each state in this Union have the right to exercise this through the act of secession.
Philosophy is not law and therefore, we must turn our attention to the law of the land to determine what legal basis the collective people have to exercise the right to disassociation through secession. The supreme law of the land is the United States Constitution and it neither outlines how a state may secede from the Union, nor does it expressly prohibit one from doing so.
The Constitution of the United States is not a document that gives the people rights; it is a document that limits the power of the federal government to take the people’s rights away. Take, for instance, the First Amendment. It does not say the people shall have the freedom of religion, speech, press, and assembly. Instead, it says:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Congress shall make no law prevents the federal government from taking away your inalienable rights you have because you exist. Consider the Second Amendment. It does not say the people shall have the right to bear arms; it says that the right to bear arms shall not be infringed.
This was intentional.
The Founding Fathers drafted a Constitution to protect the rights of the people from the federal government they were establishing at the Constitutional Convention. To do this, they delegated to the federal government a specific list of powers known as the Enumerated powers. It is known as such because you can literally count there number of powers the states delegated to the federal government (there are 27). The Constitution then specifically states:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Such is the text of the 10th Amendment to the Constitution. It says that any powers beyond those specifically delegated to the federal government by the states are powers the states reserved for themselves. In other words, since the Constitution does not grant the federal government the power to oversee, approve, deny, or otherwise handle the issue of secession, this power is reserved to the states.
Therefore, we can know that whatever process that a state must go through to secede from the Union, it is a process handled at the state level and the federal government has no role in that process. Congressional approval is not necessary. A constitutional amendment is not necessary. But what is?
Since the Constitution is silent on the matter of secession, secession is wholly a state power, per the 10th Amendment. The Supreme Court supported this principle in its 1869 ruling in Texas v. White where it wrote that a state cannot unilaterally secede from the Union. We pause here intentionally to make a point later in the following paragraphs.
Certainly in 1869, nearly a century after the country’s war for independence, the Supreme Court was aware of the institution of Congress and the constitutional amendment process. Nevertheless, the high court did not decide in their ruling that a state can secede with congressional approval or through the constitutional amendment process. Yet they did provide two means through which a state could secede from the Union:
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.
This is where we return to where we left off in the first paragraph. The Supreme Court has ruled that a state cannot unilaterally secede from the Union. This, however, is where most stop reading, never getting to the point in the ruling quoted above where the same Justices declare that a state may secede through revolution or through consent of the states.
Putting revolution aside because that is not what YesCalifornia advocates, the Supreme Court left the door to secession open “through the consent of the states.” We would like to reiterate that point: not the consent of Congress, but of the states.
Therefore, we can conclude that while a state may not unilaterally secede from the Union, it may do so with the consent of the states. The only remaining question is: what constitutes consent of the states?
We argue if a majority of state legislatures around the country passed a resolution granting consent to another state to secede from the Union, that the consent threshold would be met.
Let us for the sake of the argument stipulate that the Supreme Court’s ruling in 1869 is the law of the land, which it is, but the proper interpretation of that ruling is that secession is unconstitutional without congressional approval or without a constitutional amendment.
While the ruling is the standing precedent, for one to conclude that secession is unconstitutional because the Supreme Court ruled it so in 1869 is to deny the history of that Court overturning its own precedents. There is nothing to say that should the issue of secession reach the Supreme Court in the 21st century, that the court would uphold that Civil War era precedent.
In fact, in 2022 we saw the Supreme Court overturn longstanding precedent on the issue of abortion. The court has additionally reversed itself nearly 150 times, including decisions on child labor (United States v. Darby), on saluting the flag (West Virginia State Board of Education v. Barnette), the principle of “separate but equal” and school segregation (Brown v. Board of Education), and on same-sex marriage (Obergefell v. Hodges).
We can only welcome a 21st century interpretation of the constitutionality of secession.
At this point we have established that:
It is possible that the Supreme Court could reverse its precedent in Texas v. White should the issue of secession reach the high court again. To say that the Supreme Court declared unconstitutional in 1869 and not acknowledge that longstanding precedents get overturned is a form of intellectual dishonesty.