Congressional Path to state nationhood through legislation
By Andre Santana
In 2017, after the inauguration of President Trump, the idea of California becoming an independent nation started to gain. Many lawyers and constitutional scholars such as David A. Carrillo, Executive Director of the California Constitution Center at the University of California, Berkeley Law have contended: “there is no legal basis for a state to secede from the union.” The U.S. Constitution (A4s3) has a procedure for adding new states or subdividing existing states — both require Congress to consent. But there is no procedure, at all, in the U.S. constitution for a state to secede.” This note argues such constitutional analysis is flawed, and argues that mechanisms for state secession exist under current US law. Specifically, there is a path written in the Constitution itself, numerous instances of historical precedent, a controlling Supreme Court ruling, and years of international law recognized by the United States, all support that secession can be lawful. If legislation authorizing California or any other state to secede passed through both the United States House of Representatives and the Senate, and was signed into law by the President, then that state would have the liberty to secede and form an independent nation.
Article IV Section 3 of the Constitution governs how states can enter the union, but also refers to a process by which a territory can be “disposed of” in Clause 2. The power to decide disposal of territory is expressly granted to Congress, in a manner which has always been interpreted as a normal majority vote absent explicit constitutional language to the contrary.
Clause 1. 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.
Clause 2. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
The Congress can “dispose of Territory of other Property belonging to the United States”. While the designation and status of territory has a specific meaning under Supreme Court jurisprudence, this provision does not clarify what “other property” means. No legal precedent precludes a textual interpretation of the Property clause that “other property” can include a state itself.
The term “other property” scrutinized under a textual, plain meaning constitutional interpretation would be an all-encompassing term that applies to any property of the United States, which would include the states. Applying a structuralist framework, the Constitution’s recognition of the sovereignty of each state joining the Union lends itself to the interpretation that a relinquishment of that sovereignty should not be considered final yet, it could be argued that California’s joining of the Union was never voluntary or proper considering the American invasion and conquest of California taking it from Mexico in the Mexican American war(1846). Further, since there is no strict constructionist precedent that denies this possibility, the Constitution should not be interpreted as prohibiting secession within the wider system of federalism it establishes. If a state is not considered “other property belonging to the United States” than it has the freedom to leave whenever it wants, and this argument is mute. There aren’t any notes from the Constitutional convention clarifying the words “other property” but from an originalist interpretation James Madison is quoted in a letter he wrote in 1832 to Mr. Alexander Rives acknowledging the process of secession could happen through consent from the other states.
“It is not usual to answer communications without the proper names to them. But the ability and the motives disclosed in the Essays induce me to say, in compliance with the wish expressed, that I the not consider the proceedings of Virginia in ‘98–99 as countenancing the doctrine that a State may at will secede from its Constitutional compact with the other States. A rightful secession requires the consent of the others, or an abuse of the compact absolving the seceding party from the obligations imposed by it.”
Congress has invoked the power in Article IV to turn Territories under control by United States into nations at least 3 times, recognizing the creation of at least 5 nation-states formerly under US control.
• Cuba (1901) Platt amendment
• Philippines (1934) Tydings Mcduffie Act
• Federated States of Micronesia (1951–1986) Compact of Free association
• Marshall Islands (1951–1986) Compact of Free association
• Palau (1951–1994) Compact of Free association
These three legislative actions establish a historical precedent that Congress can dispose of territory and other property and allow the creation of a new nation-state, and provides a model for how California can seek lawful secession. Nothing in the constitution forbids or excludes a state from introducing a bill modeled after these 3 congressional bills seeking permission from Congress for a state to from an independent nation.
The only Supreme Court case on whether a state can leave the union is the famous case of Texas V White(1869). A common misinterpretation among scholars is that this case hold secession is illegal; however, the decision is careful to specify that only “unilateral secession” is unlawful, and expressly authorizes secession via “revolution, or consent of the states.” A majority vote in both houses of Congress should be considered sufficient to satisfy “consent of the states”, as all states are represented in our federal legislative bodies. Congressional legislative action should be sufficient to comply with the constitutional demands and Supreme Court precedents applicable to the question of lawful secession.
Finally, the US has recognized at least 3 times in International Law that regions have a right to self-determination. These laws provide how a region can achieve this path, and the US has expressly relied on these rights to recognize other nation states such as Kosovo, East Timor, South Sudan etc. The convention of Montevideo (1933) allows for regions to have the right to self determination and the right to be recognized as such by other nations, if they satisfy four elements:
“(a) a permanent population; (b) a defined territory; © government; and (d) capacity to enter into relations with the other states.”
Also, the UN Charter(1945) outlines the purposes of the UN, including as outlined in Article 1 section 2:
“To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;”
Further, The International covenant on civil and political rights (1966), ratified by the US,
Part 1 (Article 1) : Recognizes the right of all peoples to self-determination, including the right to “freely determine their political status”, pursue their economic, social and cultural goals, and manage and dispose of their own resources. It recognizes a negative right of a people not to be deprived of its means of subsistence and imposes an obligation on those parties still responsible for non-self governing and trust territories (colonies) to encourage and respect their self-determination.
In summary, relevant provisions of the US Constitution, numerous historical examples where Congress has disposed of territories which became independent nations, the applicable Supreme Court ruling on the subject, and an abundance of international law recognized expressly by the United States provide a strong argument that California can lawfully secede from the Union. While California would be pushing the limits of the Constitution as the first state to do it, nothing forbids California from doing it either. The procedure of Secession can be accomplished through a law passed by both houses of Congress and signed by the President, stating that the United States wishes to dispose of California in the same manner that has been done historically with other nations. It would be best if the people of California voted on a ballot initiative requesting Congress to invoke Article IV Section 3 Clause 2 to have the State of California disposed of from the United States, and than have a representative introduce the independence bill during a normal session of Congress. This method of secession would be Constitutionally sound, as well as within international law and modern democratic norms.