This term, SCOTUS is set in Moore vs. Harper to let state legislatures overturn election results and to block ballot initiatives, governors, and state courts from saying anything about it. Which raises an interesting question what the Constitution’s guarantee of a republican form of government to the states is really supposed to mean.
More than two thirds of Americans are open to states leaving the union, Zogby found in a 2017 poll. Another poll the same year reported 44% of California Democrats favored secession.
But this is just chest-beating, right? Only southern slave-owners ever took the idea seriously. And there’s no precedent, at least no successful one, right? Besides, it would be so hard.
Wrong, wrong, and wrong. In fact, U.S. conservatives are on track to drive California out of the union by 2025, though they don’t realize it. They kid themselves by thinking secession somehow belongs only to people who hate government and it’s just too hard for everybody else.
Plenty of early leaders took secession seriously. Jefferson wrote one of the Kentucky Resolutions insisting on its right to revolt. And in an 1833 letter to Webster, Madison allowed for revolution under conditions of “intolerable oppression” although he opposed South Carolina’s claim of secession as a constitutional right.
In his Proclamation to the People of South Carolina, Jackson agreed that “Secession may be morally justified by the extremity of oppression,” whether or not the constitutional mentions it. Even the Supreme Court acknowledged states might leave the union “through revolution, or through consent of the States” in Texas vs. White.
The U.S. constitution gives a hint what those conditions of intolerable or extreme oppression might be in Article IV, Section 4, where the United States guarantees a republican form of government to every state. But that’s exactly what’s at stake in the 2022 and 2024 federal elections. The court, itself, has supported gerrymandering by Republican – though generally not Democratic – state governments. And Republicans in most swing states have put election officials in place who promise to obstruct or discount voting in urban areas that might not produce the results they want.
In short, the U.S. no longer guarantees republican forms of state government where power resides in the voters and where elected officials and representatives only exercise it. In safely red states, power now effectively resides with those elected officials and representatives. And that affects all states through federal elections. The U.S. colonies clearly didn’t think the lack of real representation was a tolerable form of oppression.
It's a stretch to say there’s no precedent – other than the Confederacy – for secession, devolution, or whatever else you want to call it. The Constitution set a nine-state requirement in Article VII only “for the establishment of the Constitution between the States so ratifying the same.” It was in effect for nearly two years before North Carolina and Rhode Island ratified it, and they were independent until they did. California and 36 other states, needless to say, never ratified the Constitution.
And if there really were no legal precedent for devolution or separation from the union, the U.S. would have to take up immediate responsibility for all 110 million citizens of the storm-battered Philippines. Even before formal independence on 4 July 1946, the country elected its own president as a Commonwealth for 11 years. Come to think of it, if there were no precedents for any kind of change in states’ status, Senators Manchin and Capito would need to hand in their ID cards and go back to Western Virginia.
Last but not least, conservatives are whistling in the wind when they say Calexit, or really devolution of any state, would be just too hard. There are three issues to stitch up and there are plenty of templates for the stitching.
Remaining states would probably appreciate ongoing California contributions to the federal defense, international relations, and international aid budget. The other three quarters of its federal tax remittances mostly cover contributions to the Social Security, Medicare, and Unemployment Insurance trust funds with a little left over for infrastructure. The new Republic would take over these obligations for its citizens. It could also remit prorated fees for federal land use to Washington, DC.
California’s biggest new responsibility would be setting up a border control together with the remaining states. This might mean hiring customs and immigration officers to oversee the new border and replacing federal officers along Mexico’s.
The only unavoidable bone of contention would be the suspension of U.S. federal law in the California Republic. Of course, no one would expect states that devolve to recognize future Supreme Court rulings requiring them, say, to treat abortions as murder or allow open carry of firearms in schools.
But California would also want to enforce its own antitrust laws. Texas politicians might not like seeing antitrust penalties levied on Dallas-headquartered AT&T or American Airlines. But its citizens wouldn’t mind. European Union rules that keep Google from taking advantage of its size have been pretty popular in Texas.
Plenty of people have taken secession or devolution seriously as a remedy for oppression, be it extreme or intolerable. There’s plenty of precedent for it. And there are plenty of ways to reach agreement on the financial, border control, and law-enforcement issues that crop up. Conservatives don’t see this coming because they’ve been ducking responsibility for governing themselves for so long.