As America seems to be figuratively coming apart at the seams, movements throughout the nation to accomplish literal (geopolitical) separation in various states and regions continue to gather supporters too. Some ideas, like the one that was advanced by Nikki Haley a dozen or so years ago (when she was governor of South Carolina) and dredged up again recently given her presidential candidacy, are so wrong-headed as to barely warrant mention. When asked in 2010 if she thought states had the legal right to secede from the Union (a notion one would have thought had been put to final rest long ago by Abraham Lincoln and the other top constitutional lawyers of the 18th and 19th centuries), she reportedly said: “I think that they do, I mean, the Constitution says that.” While I have no idea which part of the Constitution Haley believes “says that,” for the record the first seven words of the Constitution—“We the People of the United States” (emphasis added)—make clear who established, and thus who can disestablish, the Union.
Another idea in the news lately is the effort to move part of Oregon into Idaho; because the organizers of this effort realize it would need approval from both the state of Oregon and the state of Idaho, as well as a signoff from the federal government, and because the proposal would not involve the creation of a new state (and thus would not involve the addition of two new senators), this idea, while still quite unlikely to succeed, is not as outlandish as is Haley’s embrace of secession.
The most recent newspaper item I’ve seen in the “let’s redraw America’s lines” mania comes from Illinois, the state I resided in for the last eight years while I served as dean of the law school at the state’s flagship campus in Urbana-Champaign (UIUC). In the very region where Lincoln himself practiced law and served as a legislator, a group of downstate (which in Illinois generally refers to all of the state that is south of Chicagoland or south of I-80) Illinoisans want to separate the urbanized Chicago area from the rest of the state, and create a separate state—called “New Illinois”—made up of the 101 counties in the state other than Cook County (Chicago’s home). (The New Illinois organizers acknowledge that actual boundaries of the new state would have to be negotiated based on the political preferences of the majority of citizens in different parts of the state.)
While I admire the pluck of the people spending time on this effort, it (like similar efforts in California) seems very far-fetched. The constitutional questions are significant, and the political hurdles seem completely insurmountable in any world that resembles the one in which we currently live.
Unresolved Constitutional Questions
On the constitutional side, the New Illinois organizers do seem to be aware (but they may not appreciate all the nuances) of Article IV of the Constitution, which requires approval of the relevant states involved, and of the federal government in the form of a legislation (which requires bicameralism and presentment) approving new states.
The text of Article IV, section 3, provides:
New States may be admitted by the Congress into this Union; but 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.
There are at least two constitutional questions that the U.S. Supreme Court has never answered that might bear on New Illinois effort:
- Can new states be validly created out of territories located entirely within existing states? Founding history and past practice (especially the additions of Kentucky and West Virginia) would suggest that the answer to this is yes, but some scholars (most elaborately Michael Paulsen) have pointed out that Article IV’s text and punctuation could easily be read to mean that while new states can be formed out of the territory formerly belonging to two or more states, a single state cannot be carved up into multiple ones.
- Would the people (or their representatives) of eachof the newly created states have to agree to the new arrangement, or would it be enough for the people (or legislature) of the State as a whole (as Illinois currently exists) to agree? In other words, when Article IV speaks of the need for the consent of the “States concerned,” does that mean (in the context of a single state that is being subdivided) only consent of the mother state (which is to be divided), or also of the newly created states? Are these newly defined states “States [that are] concerned” within the meaning of Article IV?
Political Hurdles Locally
As a political matter, the idea would have to win support both in Illinois and in Washington DC, because, as noted above, the creation of new states requires, under Article IV of the federal Constitution, the consent both of the legislatures of the involved states and of Congress (which for these purposes includes the President, since “Congress” has been understood here to mean federal lawmaking system). As to the Illinois electorate, while it may be true that Illinois (like the nation and like many other states) has endured problems in self-governance over the last decade at least, whether Illinoisans are ready to make such a radical change is far from clear. There is, to be sure, tension between different parts of the state—the communities that make up the large and densely populated metropolitan areas near Lake Michigan (and in the university/technology-focused community of Champaign-Urbana), on the one hand, have very different demographic, economic, cultural, and political characters than do the smaller communities located in the more rural areas to the west and south of the state, on the other.
But there are also important centripetal forces at work here. Could the southern and western agricultural counties really make do without state tax revenue that comes from Chicagoland and its wealth of professionals and highly valued real estate? Would the New Illinois state have nearly the money it would need to educate its children, or to maintain its infrastructures? (The largest university in the state, UIUC, is located outside of Cook County, but whether its residents would be willing to join a new state, or whether Chicagoland residents—who make up the lion’s share of the state’s voters—would ever be willing to let it go, are doubtful).
Daunting Political Hurdles at the Federal Level
But let us imagine that, at least provisionally, a large number of Illinoisans want to carve up the state, more or less along the lines that the New Illinoisans suggest. What about approval at the national level? There are plenty of political hurdles there too. Indeed, there at least two axes on which one might imagine lethal opposition in Congress—interstate federalism and partisan posturing. As to interstate federalism, many (most?) of the other states outside Illinois (and their representatives in DC) might be reluctant to reduce their current relative voice in the federal government, a consequence that would result from essentially doubling Illinois’s share in the Senate from 2% (two out of 100) to about 4% (4 out of 102) given the Constitution’s command that the “Senate shall be composed of two Senators from each State.”) Getting low-population states—that currently enjoy the fact that they have equal say with more populous states in the Senate—to effectively dilute their share of congressional ownership might be especially difficult.
Some members of Congress may be influenced less by local influence in DC and more by national political party consequences; after all, party more than geography is the dominant feature of American politics this century. But here is where things get particularly sticky. It is quite likely, given demographics that prevail today and for the foreseeable future, that the two new senators from New Illinois would both be Republicans, which would mean that adopting the proposal would give the Republican Party two more votes (in the enlarged Senate) and give the Dems nothing (since currently Illinois’ two senators are already reliably Democrat). Think about how that would affect things in today’s Senate, where there are currently 48 Democrats, 49 Republicans, and 3 Independents (who caucus with the Democrats). The addition of two new Republican senators would mean 48 Democrats, 51 Republicans, and 3 Independents. In this newly expanded Senate, even assuming all three Independents generally continue to vote with the Democrats on big issues (and they don’t), the addition of New Illinois would still give Republicans a tie in the Senate, making the party affiliation of the Vice President (who breaks Senate ties) even more crucial than it is today. This likely erosion of Democratic party power in a closely divided Senate would doom the New Illinois proposal.
There is simply no way that Democrats, either in Illinois (where they make up a solid majority of Illinoisans) or nationwide, would risk such a harm to the party. Even if the Republicans had control of the House, Senate, and the President, the Democratic Party in Illinois—and here is where state and national politics come together in a world dominated by political party loyalty—would prevent the state from ever providing the consent required under the Constitution, whether that consent is required of Illinois statewide, or of both the Cook County Illinoisans and the New Illinois residents separately, a question flagged above. (And here is where the New Illinois website’s mention of interest in a similar idea in 1981 is almost quaint; the political landscape today is so far removed from that four decades ago that the data point is hardly worth even mentioning.)
Whether Illinoisans (and Americans more generally) like it or not, they are going to have to find ways to peacefully live (and govern themselves) together within the political boundaries currently in place, because the same hyperpartisan tribalism and razor-thin margins in elections that are pulling us apart also make it nearly impossible to envision orderly alterations in our political boundaries.