Can a U.S. state secede from the Union? Is there a clause in the Constitution which allows states to secede from the Union, or can this process be done by voting?
I come across questions like this periodically. I usually give a version of the same answer, and get a lot of people telling me that I cannot predict the future, or X, Y or Z could happen to make secession a realistic possibility. So let me try to be very clear and cover all the bases here.
Under the legal, constitutional and political system that currently exists in the United States, unilateral secession by any state is impossible. There is no right of secession. It is not a power that exists for the states. The Civil War literally resolved this question. If you don't believe me, listen to the late conservative Supreme Court Justice Antonin Scalia:
"...the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede."
The Supreme Court actually ruled on this question in 1869, in the case of Texas v. White. In this case, the Supreme Court was asked to determine whether certain acts by the government of Texas during the period when it had seceded from the United States during the Civil War were legally valid and enforceable. This required the Court to rule on the Constitutionality of Texas's act of secession itself, to determine whether Texas had ever left the Union at all. Here is an excerpt from that opinion, which is a precedent that is still in force:
The Union of the States never was a purely artificial and 725*725 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?
But the perpetuity and indissolubility of the Union, by no means implies the loss of distinct and individual existence, or of the right of self-government by the States. Under the Articles of Confederation each State retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly delegated to the United States. Under the Constitution, though the powers of the States were much restricted, still, all powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively, or to the people. And we have already had occasion to remark at this term, that "the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence," and that "without the States in union, there could be no such political body as the United States."
Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.
726*726 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.
It's important to understand here that the Supreme Court was both giving voice to, and actually writing into American constitutional law, the United States government's official view of the Civil War: that the states which claimed to have seceded did not actually secede because that's not something the states can actually do, and so those states, and their citizens, were always part of the United States.
Now, prior to the war there was legitimate debate over whether secession was possible. No less an authority than James Madison, the father of the U.S. Constitution, argued in 1832, not long before his death, that unilateral secession was not possible:
The essential difference between a free Government and Governments not free, is that the former is founded in compact, the parties to which are mutually and equally bound by it. Neither of them therefore can have a greater fight to break off from the bargain, than the other or others have to hold them to it. And certainly there is nothing in the Virginia resolutions of –98, adverse to this principle, which is that of common sense and common justice. The fallacy which draws a different conclusion from them lies in confounding a single party, with the parties to the Constitutional compact of the United States. The latter having made the compact may do what they will with it. The former as one only of the parties, owes fidelity to it, till released by consent, or absolved by an intolerable abuse of the power created.
What Madison was saying here was that, since the Union was formed as an agreement among the states, that agreement cannot be dissolved without the agreement of all the interested parties involved. So for one state to leave the Union, or one group of states, would require the permission and agreement of all the states. One state does not have the right to enforce its will on the rest of the states, and end a mutual agreement without mutual consent.
This was one of many arguments Lincoln drew upon when responding to the secession crisis in 1861. But beyond that, Lincoln also argued that the states are not like puzzle pieces that you can just lift out of the union, free and clear, with no impact on the rest of the country. What would happen, he suggested, to businesses which conducted business across state lines, or that had employees in multiple states, if one or more of those states seceded and formed their own country? What would happen to treaties and trade agreements between the United States and foreign powers if some states left the Union and stopped abiding by them? What would happen to navigation rights and access to waterways and rivers that border multiple states, if one of those states left the union? What about businesses that use those waterways to transport goods? What about private individuals that like to sail upon those waterways? What about bridges that cross them? What about railroads that cross state borders? What happens to all of these things if one state decides they are now a separate country, and they are permitted to do so?
The point of this argument was not that these issues could never be resolved; it's that a state's decision to leave the Union affects the lives and livelihoods of many people outside that state's borders, and so the people who are affected by that decision must have some say in whether or not it is allowed.
In the modern world the integration of the states that Lincoln spoke of is even more dramatic. Take, for example, airspace. Right now, all civilian air traffic over the United States is controlled by the Federal Aviation Administration. Air traffic control is a federal responsibility because air traffic usually crosses state lines. Air defense over the United States, and most of North America, is handled by NORAD and the U.S. military's complex of radar and radio communications systems that track incoming aircraft. What happens if, all of a sudden one day, an independent country pops up in the middle of what is currently U.S. airspace? What about bridges and tunnels that cross from one state to another? What about federally constructed and funded roads, like the interstate highways? What about power lines? Many states use electricity that is partially generated outside their borders. What about finance? What if you have a bank account in a bank that is now based in a foreign country, with a different national currency? (Oh, if you started your own country, yeah, you'd need your own currency.) What if you had investments or property that suddenly becomes part of a separate country, and is now subject to rules and regulations that you have no representation in? What about taxes? Right now, many states receive back in federal funds more money than they pay in taxes.
What happens if one of the states that receives more money than it pays in taxes, like Mississippi or Alabama, seceded from the union? Well, it would save the rest of the states money, I suppose. But the people living in those states, to maintain the same level of services they received while in the Union, and the same standard of living, would have to dramatically increase the taxes they charge their now-independent citizens. This is because our tax and finance systems are integrated, national systems. You can't just lift a state out without major, major disruption.
Now, at this point, many secessionists are thinking, "Well, nobody said secession would be EASY, just that it is or should be POSSIBLE." But the point here, again, is that if your decision as a single state to leave the Union affects people living in other states in a negative way, then Madison's formulation - that a mutual agreement requires mutual assent to dissolve, and states can't secede without the unanimous agreement of all the states - starts to be a lot more clear and logical. If a decision made by the people living in one state would be highly disruptive to the lives of people living in other states, then those people who would be affected should have a right to say, "No, you do not have a right to do this to us if we do not agree."
And what about people within a state that disagree with the decision to secede? Supposing Texas voted to secede (again). And suppose that 70% of the people of Texas were in favor of this decision. This would mean that 30% of the population of the state did not want to leave the United States. If the rest of the population of the state can force this decision upon them, then they are forced to either surrender their nationality and citizenship in a country they love, and which gives them the same set of rights everywhere in the United States that they might choose to travel, or else they have to leave their homes and their jobs behind and move to a state that remains in the Union. Faced with this, would it not be reasonable for this minority to call out to their national government to protect them from this? Especially if they were a minority of the population of Texas, but their views matched a majority of the population of the United States as a whole, which did not want Texas to secede?
The 14th amendment of the Constitution says, "All persons born or naturalized in the United States and subject to the jurisdictions thereof, are citizens of the United States and of the state in which they reside." The wording and ordering of this clause was very deliberate. You are a citizen of the United States FIRST and by birth (or by law through naturalization) and you are automatically also a citizen of the state you happen to live in, just because you live there, and if you move to a different state, you automatically become a citizen there. The states have no power over citizenship. This was not always true, and it was not clear what the boundaries were between state and national citizenship were prior to the 14th amendment. But the Constitution is clear now. National citizenship takes precedence. It literally comes first. So would not the national government be obligated to defend its citizens who called upon it for help, if their state was trying to force them to become part of a different country against their will?
For all of these and many more reasons, secession is a practical, legal, constitutional and political impossibility.
Now, as I said, I have written other answers like this before. And I always get comments that say something to the effect of, "You can't see the future! Just because secession wasn't allowed in the past does not mean it won't be in the future!" Or "If a state really wanted to leave, there's no way today the federal government would actually use force to make them stay."
So you can certainly say, "Well, things can change!" Sure. The American people could, at some point in the future, choose to amend the Constitution to grant the states the right to secede, or grant universal consent to a state to leave the Union. But it's really important to understand how massively huge and dramatic a change this would be from the current legal, constitutional and political culture of the United States. It is no more and no less realistic to say that the people of the United States could someday choose to allow secession as it is to say that the people of the United States could someday choose to have a King. The people, as the ultimate sovereigns, could in fact amend the Constitution to establish a monarchy (thereby surrendering their sovereignty to a single individual.) This is something that technically CAN happen. Since I can't see the future, I cannot say, definitively, that this will NEVER happen.
But I can say with a fair degree of confidence that the history and culture of the United States makes such a decision staggeringly unlikely for the foreseeable future; in fact, so unlikely as to say that it is not a realistic possibility.
The same thing may be said about secession.
So the answer to this question is "No."
The basic answer:
There is no clause in the US Constitution that prohibits it. The US Constitution only addresses the method by which a state may be partitioned into two or more states, or by which two or more states may be joined as a single state. The US Constitution is silent with regard to secession. Per the Tenth Amendment, part of the Bill of Rights, that which is NOT reserved to the federal government by the Constitution, is the sole prerogative of the states. This would be normally carried out by a state legislature with a resolution, which is how it was done on the eve of the Civil War. Some states have a Referendum Clause and and some have an Initiative Clause in their State Constitution; some have both clauses. In those states with those respective constitutional clauses, a popular Initiative (by petition) or a Referendum (by the legislature) could put secession on a voting ballot for the state's voters to decide.
It isn't required to be permitted, it's required to be forbidden or otherwise regulated by the Constitution in a manner which prohibits unilateral state secession. The Constitution does defer some regulation to Congressional Act, such as immigration, and some portions of the Federal Judiciary, versus hard-wiring it into the Constitution, but there is no mention of Congress regulating secession by Congressional Acts or Resolutions. All Congressional Acts must have a basis of their authority in the US Constitution, otherwise they are unconstitutional as reaching beyond what the Constitution authorizes Congress to do. Numerous Congressional Acts and portions of them have been struck down by SCOTUS on that basis. The Executive Branch and the Judicial Branch are likewise bound to the Constitution.
The Confederate States of America seceded from the Union individually using secession resolutions passed by their legitimately elected state legislatures and signed by their legitimately elected sitting governors, all elected and serving in office while the state was part of the Union. Nobody can claim there was an overthrow of a legitimate state government, or that the seceding state governments were illegitimate at the time of secession.
Their commonly stated reason for secession was to ensure they could continue the institution of slavery. The legal authority the secessionist states used that empowered them to secede was States' Rights as guaranteed by the Tenth Amendment. Lincoln did NOT send troops south of the Potomac to free slaves. He sent them into the secessionist states to prevent them from seceding. Proof positive of this is his 1963 Emancipation Proclamation, which included a deadline, which was a dual purpose political move to:
- Placate Radical Republican Abolitionists in a Congress now devoid of representation by the eleven Confederate (slave) states, to maintain their support in prosecuting the war, and
- Convince the ten states remaining in the CSA to quit the war and rejoin the Union. Had they done so, they could have maintained slavery.
It also had the fringe benefit of offering ensured freedom to slaves fleeing from the ten remaining CSA states if they served in the Union Army. Lincoln was having immense problems attempting to raise manpower to replace the staggering battlefield casualties, and the draft had resulted in draft riots that had to be quelled using military force. The Emancipation Proclamation only freed the slaves in ten states. Slavery continued to be very legal and enforceable under Federal Law (Fugitive Act) in Maryland, Delaware, West Virginia, Missouri, and Kentucky, the slave states that had not seceded (in spite of a couple of them coming very close to doing so). It also continued to be very legal and enforceable in Tennessee, which was a secessionist state no longer "in rebellion" as it had been reconquered by Union forces (Lincoln's criteria). This is a fact that's so very easily ignored by those who claim Lincoln fought the war to free slaves. The Great Emancipator is, in actuality, the Great Partial and Selective Emancipator. Emancipation of ALL slaves did NOT occur until the Thirteenth Amendment, which was ratified in December 1865, many months AFTER Lincoln's assassination.
As Lincoln did in 1861, one would expect the Federal Government to respond in the same manner, if necessary, to halt a secession by use of arms. The Federal Government has overwhelming military force to do so compared to the National Guard, even collectively (for which the individual state governors are commander in chief of their respective National Guard forces). From a practical standpoint, a state could not expect to succeed with a unilateral secession unless Congress authorized it and blocked the President from preventing it with force of arms by Congressional Act, if by nothing more than refusing money from the US Treasury to fund using the Armed Forces to prevent it.
There is no solid, concrete SCOTUS decision that clearly prohibits secession. The SCOTUS has danced around it on several occasions. Comments in several of its decisions state that secession would have succeeded had the Confederate States of America not lost the war to Union forces and surrendered, that the use of force of arms had prevented it.
Had it not been to preserve slavery, nearly all of the Confederate States would have eventually seceded over other issues, notably tariffs, which were being structured to protect and profit northern industry at the expense of hampering and in some cases crippling the southern economy, which relied on importation of British goods to provide revenue for the British to buy southern raw materials, most notably cotton. The Tariff Act of 1828 nearly precipitated secession and was headed off by the Tariff Act of 1833 which reached a compromise. The issue of secession was very seriously raised in 1842 by South Carolina with the Black Tariff Act (had nothing to do with slavery). The South Carolina Bluffton Movement arose from that, advocating South Carolina secession and began heading in that direction. It was staved off and dissipated by a major shift in federal political power that created the 1846 Walker Tariff. Secession and the serious consideration of it by southern states had been part of the political landscape for decades prior to the Civil War.
The people saying "no" aren't understanding the primary issue of secession -- namely, can people determine how they wish to be governed and by what means? Secession, by its very nature, has nothing to do with the "legality" of the act within the government it is trying to secede from - the law is completely irrelevant (even if there were one).
So, YES, YES, YES a State can secede from the union. Though many assumed that the Civil War "solved" the issue of secession it did no such thing. Even those that argue that it is illegal can't point to anywhere in the Constitution that does not allow for secession. However there is plenty of evidence from the framers that it's not only legitimate, it's a given, a true human right.
In reality, the framers of the Constitution always felt that the nation was nothing more than an agreement between sovereign entities that could part when the union did not suit their needs. The framers of the Constitution always saw that government was there to protect the inalienable rights on the people (not grant them rights). When government ceased doing that effectively, then the people -- and states -- had the natural right to leave the union (since, in essence, the union left them). The Federal government - and the United States - was only meant to provide for things that the individual states would have had a hard time doing as individual entities (protecting itself from foreign invasion, for instance).
It's popular to argue that this is "settled" - it's the easily argument for people not willing to make the effort to look into the issue more deeply. Or those that just don't understand the what "secession" really means.
One only needs to look at how the country was formed to understand how it can be taken apart. The Constitution is only in power because of the agreement of the individual, sovereign states. Every state had to vote on it - and if they voted "no" there was no desire to "force" them into the Union. North Carolina voted "no" 3 times and was successfully not invaded by the others each time. In fact, they could have just went their own way and the other states would have been fine with it.
While it's known that James Madison understood that secession was always a viable option for states, he would have likely argued that nullification was the better course of action -- something he and most of the attendees of the conventions saw as a given at the time. In other words, there's no need to leave the Union because a State can always choose to ignore, or nullify, Federal laws that overstepped the bounds of the Constitution.
But there is a buffer issue here. The question isn't about legality of secession -- which is an absurd notion to begin with. It's about if a State (i.e. the people) can leave the Union. The very simple answer is Yes, of course.
Why? Well, one of the better arguments is the Declaration of Independence.
"When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation."
Much like the Colonies, a State could just say, "We are done with it, thanks." The Colonies weren't looking to whether an English law existed for them to sever ties with Great Britain. Rather, they looked to the Laws of Nature and Nature's God as the deciding factor -- in short, they said that the oppressed have a natural right to choose their own destiny.
In that sense, every State, through the desires of their people, have a right to decide how they want to be governed. If, for instance Rhode Island's people no longer wanted to be a part of the Union -- would you, as a citizen of Montana, support a military action to force the people of Rhode Island into your little club? Would you support killing people in Rhode Island to make them join? Bomb Providence?
The point is, that the world today is NOT the 1860's -- it's vastly different. The Federal government would use many means to prevent the secession of a State -- primarily withholding Federal funds. In the end, however, if there was a vast groundswell of support in a state (especially a major State like Texas) there would be little that the Federal government could do if the State were willing to take the short-term economic hit.
Now, I've seen some argue that the Federal government would go to war -- Russia/Ukraine style to "protect" the rights of US citizens not in favor of the State's secession. My argument would be that unless the State used military force in their secession rather than economic and will to be peacefully left alone to their own devices, there would be no support for military action (in all likelihood those citizens would be offered a dual citizenship).
Many see secession only in the light of a bloody civil war -- the fact is that when the US breaks up, it'll likely be peacefully and for geographic and economic reasons and not result in bloodshed.
Can a state or group of states secede from the union without permission of the other states? No. That was settled in blood by the Civil War.
Could a state or group of states secede if they persuaded the rest of the states that their participation in the union is more of a liability than a benefit? Yes. There's nothing in the constitution to prevent a mutual parting of the ways.
Here are some international examples:
- The Soviet Union (dominated by Russia) allowed most of its provinces to become independent nations. It's one thing to let go of foreign countries like Georgia or Armenia, but they also released the Ukraine and Byelorussia-areas that were historically part of Russia. The Ukraine secession story is still going on.
- Czechoslovakia voluntarily split into the Czech Republic and the Slovak Republic.
- Yugoslavia became Croatia, Bosnia and Herzegovina, Kosovo, Macedonia, Montenegro, Serbia, and Slovenia. This dissolution didn't proceed easily or without outside interference, but it is now complete.
- South Sudan seceded with the reluctant (some would say forced) acquiescence of Sudan.
So let's say that Texas (possibly with some neighboring states) decided to secede and most of the other states said OK (or good riddance). How would this work?
Unfortunately it's not simple. Consider these problems:
- Secession must not leave pockets of resistance. What if the majority of Texans in most areas voted to secede, but those in the Austin area voted to stay in the union? What if most Anglos voted to secede, but most Hispanics and Blacks voted to stay? What if the cities voted to stay but the suburbs and small towns voted to leave? What if 51 percent voted to leave? Could you really start a new country with a large minority opposed? Could people who wanted to leave the new country do so? Most likely the parent country would insist on fairness for dissidents, but what would that mean?
- Secession should follow geography. Most of the boundaries of Texas were randomly drawn at some point in history, and don't necessarily match up with political reality now. This wouldn't be a problem in a small homogenous state, but Texas? California might be even worse. What if southern California wanted to secede and northern California didn't. Where would you draw the line?
- Secession depends on Geography. No nation can support creation of an enclave within it's borders. Secession of Texas might be thinkable because it is on the border, but secession of Kansas, Nevada, or any other state with no coasts or foreign borders is impossible. Similarly a state on a major national waterway cannot secede, leaving upstream states with no outlet. That rules out Louisiana, and other states that control the Mississippi, Columbia, or other major rivers.
- Secession involves splitting resources and responsibilities. If Texas secedes, what happens to NASA, which belongs to the United States? What happens to all the US military bases? What happens to all the Texans in the US military? What if all the credits and debits of the United States and Texas are added up, and it turns out that Texas owes the United States a whole lot of money? Must it pay up before seceding?
Secession is not necessarily impossible, but it's messy.
This is all assuming that the US government just let them go without a fight which wouldn't happen.
First, they would have to deal with all the residents who didn't want to lose their US citizenship. People aren't as loyal to their state as they once were. The people who would leave would most likely be the non-natives. They are probably more educated and technically skilled than the natives because highly skilled people tend to be more mobile. So, there would be a brain drain.
Second, if the country were land locked (Kentucky? Are you kidding me?), they would be totally at the mercy of the US government for exports. We would squeeze the shit out of them economically until they said uncle and came back much poorer as a result. Even if they did have access to the sea or bordered Canada or Mexico, other countries may not willingly let this new country adopt all the US trade agreements. So, they will be on their own.
Third, all the residents would lose 100% of their social security benefits. This is what happens when you renounce your country.
Fourth, the legal messes everyone would be in would be titanic as the two countries tried to sort things out. If you've ever been through a nasty divorce you might have an idea of what I'm talking about only multiply it by 10 million or so.
Fifth, they will lose all US government funding instantly. That would be a shock of epic proportions. Every federal employee would be laid off. Most federal contracts would soon be cancelled.
Sixth, they would have to raise a huge amount of money in a short period of time and the only way to do that would be to get outside investors to bail them out. Depending on how spiteful the US decided to be, they could be shut out from any foreign investment which would include Wall Street of course.
Basically, they would be completely at the mercy of a pissed off US government and have ZERO representation. They would learn pretty quickly what it is like to be a third world country under the "protection" of the good old USA.
So, it is one of the more colossally stupid ideas anyone has come up with recently.
Clearly, the primary consideration is the legal right to do secede- just like Brexit from the EU.
In response to secession-petitions for the American states, White House Author Jon Carson issued the following statement: