One headline reads: “Siskiyou County [California] supervisors vote to pursue seceding from state.”  Another reads: “Group calls for western Md. counties to secede.”  Yet another: “Northern Colorado Secession: Most In Favor Of 51st State At First Public Meeting.”  Finally: “What if Texas Really Does Secede?”

Headlines such as these seem to almost be a weekly occurrence these days.  Is America coming apart at the seams?  All this talk of secession, is it just that – talk?

Supporters attending a meeting of the Siskiyou County Board of Supervisors proposed the county form a new state — called “Jefferson” (cute!).  They would invite other counties in Northern California and Southern Oregon to join them.  “Many proposed laws are unconstitutional and deny us our God-given rights.”  “We … have this enormous bureaucracy of unelected officials making decisions for us” were some complaints.

This is not the first time California has seen such talk.  As recently as 2011, Riverside County officials discussed a proposal to secede and establish a new state called “South California.”

Back in Maryland, Republicans in the five western-most counties complain that their views are being ignored in the Democrat-controlled state.  Critics point out it would create “a pencil-necked nano-state that would be poorer, more rural, less educated and much whiter than the Free State as currently constituted.”  The reason for the friction?  Maryland Democrats gerrymandered the state’s congressional districts after the 2010 Census, setting up Republican incumbent Roscoe Bartlett, who had represented western Maryland for 20 years, to be defeated.  Of the state’s eight congressional districts, Republicans now control just one, on the Eastern Shore.  Isn’t democracy just great?  Not if you’re the lamb voting with the two wolves over what’s for dinner.

A couple of years ago, I mentioned the idea of secession to a friend of mine.  There had been some new rumblings down in Texas I seem to recall.  I said that the Constitution really doesn’t say that a State can’t secede it merely sets rules for new states joining the union.  His reply: “I think the Civil War settled that issue.”  He was speaking, of course, of “The War for Southern Independence” (if that doesn’t get me a kudo here, nothing will).  Is the issue really settled?  Maybe, maybe not.

Article 4, Section 3, Clause 1 of the Constitution states:

“New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”

These words didn’t prevent West Virginia from being formed within the jurisdiction of the state of Virginia.  As the Civil War loomed, the people of western Virginia rejected Richmond’s decision to secede from the Union.  They announced themselves as the legitimate government of Virginia and gave themselves permission to secede from the rest of the state, forming the State of West Virginia.  President Abraham Lincoln immediately recognized the new state; Congress took a little longer.  The Supreme Court cemented things in 1871 (in Virginia v. West Virginia).

So you can see that the Constitution doesn’t prevent the good folks of northern California or western Maryland forming a new State, they merely need “the consent of the legislatures of the States concerned as well as of the Congress.”  Good luck with that, in either instance.  But then, West Virginia didn’t need the consent of Virginia did they?

Historian Kenneth M. Stampp, in his book “The Imperiled Union,” maintains that it is impossible to say that secession is illegal because of the ambiguity of the original Constitution as to state sovereignty and the right of secession.  Before they ratified the proposed Constitution the thirteen states were sovereign entities, voluntarily confederated.  Did the states give up their full sovereignty in ratifying the Constitution?  Hardly!  So how much sovereignty did they give up, how much do they retain, and to what actions or “objects” (as Madison would say) does that sovereignty extend?  There’s the rub.

In the 1869 case of Texas v. White (note, this is after the Civil War), the Supreme Court suggested that the Constitution ordained the “perpetuity and indissolubility of the Union”. The court did allow some possibility of divisibility “through revolution, or through consent of the States.

In their 1788 letter of transmittal announcing ratification of the Constitution, Virginia’s convention made a veiled threat to a right of secession by stating that if the powers they were giving up to the new national government were ever “perverted to [the people of Virginia’s] injury or oppression” those powers would be “resumed by them.”   Most recently, Texas Governor Rick Perry suggested that Texas might consider secession (and then retracted the statement).  A 2008 Zogby International poll revealed that only 22% of Americans believe a state or region has the right to peaceably secede and become an independent republic.

In summary, it seems to be settled law that the Constitution does not permit unilateral secession: a state or group of states cannot simply leave the Union over the objections of the national government.  However, the arguments that led to this understanding are hardly beyond challenge: the Constitution is probably best read as permitting the mutually agreed upon departure of one or more states (or perhaps even the forming of “The State of Jefferson”).

© 2013 The Constitution Leadership Initiative, Inc.  This essay first appeared in the Yorktown Crier-Poquoson Post on 26 September 2013.  Reproduction for non-profit purposes is hereby given.