How Best to Secede from a State

Some spirit of secession has spread across the land, with various areas in Maryland, Colorado, Texas, California and elsewhere discussing seceding from their states, because of political alienation arising from significant differences in values and preferences. I don’t take the political prospects of American secession movements too seriously, and assume their principal purpose is to gain leverage for their preferred policies within their state governments.

These secessionists have an advantage over those seeking outright separation from the Union – and a big disadvantage. On one hand, they don’t have to deal with the Confederacy/slavery baggage that tends to confound discussions of secession in the U.S. On the other hand, the Constitution, Art. IV, sec. 3 clearly forbids the creating a new state in the territory of an existing one without the latter’s consent, and the consent of Congress. That is a high bar, practically insurmountable.

But there may be an easier way for those who seek to secede from their state – instead of creating a new “51st” state, secede to join an existing state. The Constitution’s requirement of home-state and congressional consent only clearly applies to the creation of a “new state”:

… no new State 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.

The language of the provision is a bit unclear. Does the second clause above (“nor any State be formed”) refer back to, and continue the discussion, of “new states”? That would mean that the provision does not govern the transfer of territory from one state to another. The interpretation probably depends on what it means for a state to be “formed.” Does it refer to the creation of states, or the changing of their borders (forms)? If western Maryland secedes to join West Virginia, would one say West Virginia has been “formed” by the merger of West Virginia and parts of Maryland? I would say “West Virginia” has already been formed, and changes to its boundaries – even at the expense of other states – do not clearly fall within Art. IV, sec. 3. Part of the question is whether “formed” and “erected” are synonyms or not (akin to the discussion of “high crimes and misdemeanors,” “piracies and felonies on the high seas,” “ordain and establish” inferior tribunals).

The history and purpose of the provision support the narrower reading. It was inserted to deal specifically with several foreseeable issues specific to new states: the division of the western possessions of existing states, and the incorporation of the Republic of Vermont. The numerous border disputes between existing states at the time of the Founding do not seem to be part of the discussion of the provision, but rather motivated the Interstate Disputes clause of Art. III.

There are sound structural reasons for having lower barriers to interstate seccesion that the creation of a new state, and in particular for not requiring congressional consent for the former. A new state is a new sovereign, with a full set of sovereign privileges; the number of such actors is a matter of national interest. Perhaps more importantly, a new state significantly changes the balance of electoral power because of the voting preference given to states-qua-states, especially in the Senate, but for very small states, also in the House. Thus a new state dilutes existing State’s voting power. The mere transfer of territory and population from one state to another does not have this effect.

Of course, the secessionist sections of Maryland are part of the sovereign territory of Maryland, and it is not clear why even the overwhelming wishes of the population there to “switch” to West Virginia should be able to change this. In this way, state-level secession stands on a weaker footing than federal secession, because the subdivisions of states are not themselves sovereign actors.

Bearing in mind these obstacles, the state secessionists’ best bet would be to have some local referendum or Convention that would overwhelmingly favor joining another state. Then the receiving state would sue in the Supreme Court’s original jurisdiction. The interstate disputes jurisdiction extends to all kinds of disputes. The receiving state would have to argue that general principles of republicanism and democracy militate for people who have overwhelmingly (say 75%) expressed their desire to join another state should be allowed to do so. There is no clear law to apply to such questions – interstate disputes are governed by federal common law – and Rhode Island v. Massachusetts suggests that what might otherwise be a political question may not be when brought as an original jurisdiction interstate dispute. Ruling in favor of the secessionists would require a decision based on general and subjective notions of democracy, and would allow the Court to constitutionalize its theory of political justice, but that is nothing new.

Of course, the “receiving state” would have to agree to its enlargement, but presumably that would be an easy sell. Incidentally, it is not clear that such “switch secession” would require hooking up with a territorially neighboring state. There is no requirement that states be continuous, as Michigan’s northern peninsula demonstrates. Indeed, Massachusetts was separated by New Hampshire from its northern provinces until the creation of the State of Main in 1820. So potential secessionists could go “on the market” to find the best potential state to unify with, though presumably proximity would bring practical conveniences.

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