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."

Sorry Secessionists, Justice Scalia Won't Help You Out

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.

James Madison on Secession

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.

This map shows the states the most and least dependent on the federal government

2016's Most & Least Federally Dependent States

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."


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