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Can Texas Really Secede from the Union? Not Legally—A Commentary by Adam Cohen

The following commentary was posted on on November 19, 2012.

Can Texas Really Secede from the Union? Not Legally
By Adam Cohen

It’s beginning to feel a lot like the 1860s — and not just because Steven Spielberg’s Lincoln opened wide this weekend. There is a secessionist movement afoot, and hundreds of thousands of Americans from all 50 states have signed petitions to secede. Texas is in the lead — no great surprise, perhaps — with ABC reporting last week that the Lone Star State’s petition was the first to get more than 25,000 signatures. It now has more than 100,000.

That 25,000 mark — which at least seven states have hit — is significant. The petitions were shrewdly placed on a White House website called “We the People,” which invites members of the public to appeal directly to the federal government. The website promises that petitions that get more than 25,000 signatures within 30 days — subject to some exceptions — will get a response from the White House.

What, exactly, are the grounds for seceeding? Well, it is a bit scattershot. The Texas petition complains that the U.S. is suffering economically “from the federal government’s neglect to reform domestic and foreign spending” — and it also throws in abuses imposed by the Transportation Security Administration which could be summarized with the phrase “don’t touch my junk.” Virginia’s petition cites — with somewhat arbitrary punctuation and capitalization — “Lies and Cover-Ups. Including potential Voter Fraud.”

Scoff if you will, but it is clear that the neo-secessionist movement is having a moment. The Drudge Report, that calibrator of the far-right Zeitgeist, exulted in a headline on Wednesday: “Succession Movement Explodes.” And articles have been appearing online with headlines like, “Is Secession the Answer for Utah?” (If it is, what exactly is the question?)

Of course, the anti-secessionists are gleefully responding. Chuck Thompson — the author of Better Off Without ‘Em: A Northern Manifesto for Southern Secession — has written a piece entitled, “Go Ahead and Secede, Texas. I Dare You.” In it, he argues that the small-government utopia that the Texas secessionist are dreaming off — a country with weak trade unions, negligible taxes, and no guaranteed health care — “already exists. It’s called the Democratic Republic of the Congo.”

As the petitioning and flame wars continue online, though, it’s worth stepping back and asking a basic question: Is any of this legal? Can a state actually secede from the union?

It’s a question law professors sometimes like to ponder, but the answer certainly must be no. The Constitution, which provides processes for new states to enter the union, and for current states to divide or reconfigure, does not have any provision for states leaving the union. If a state left, it would have to do so by force — something Abraham Lincoln knew a lot about — since there is no legal basis it could point to for breaking away.

It is often said that the Civil War answered this question — that when the South surrendered at Appomattox, the idea of secession was also defeated. In fact, no lesser authority than Justice Antonin Scalia — who would probably rank #1 or #2 in a parlor game bet over “Which Justice is most likely to sign a secession petition?” — has said precisely this. In response to a letter from a citizen asking if there was a legal basis for secession – a letter that it is remarkable a sitting justice answered — Justice Scalia wrote in 2006: “the answer is clear. If there was ever any constitutional issue resolved by the Civil War, it is that there is no right to secede.”

Of course, it is highly unlikely that any of these legal questions will have to be resolved — because for all of their petition signatures, the secessionists remain a perversely small minority. Even in the states that are racking up the most signatures, the governors have been quick to distance themselves from secession talk. The conservative Republican governors of Alabama and Texas have come out publicly against secession. The governor of Louisiana — whose state’s signature total was second only to Texas’s on Wednesday — called the idea “silly.”

In fact — just like 150 years ago — the pro-union forces are starting to respond with some force. A petition recently went up on “We the People” entitled “Deport Everyone Who Signed a Petition to Withdraw Their State From the United States of America.” It’s gotten more than 24,000 signatures, and counting.