We live in a politically turbulent time—so much so that our political news is dotted with stories about secession, something that hasn’t been attempted in a significant way since 1860 and 1861. The Civil War, the deadliest war in the nation’s history, ensued.
New York Times columnist Jamelle Bouie recently discussed the parallels between political developments after the adoption of the Fugitive Slave Act in 1850 and the response today to Immigration and Customs Enforcement detentions. In California, leaders of “Calexit,” a California secession movement, plan to re-file a ballot initiative that would ask voters whether California should leave the United States. Last year, before the presidential election, Dean Erwin Chemerinsky warned of the prospect of secession in his book, No Democracy Lasts Forever: How the Constitution Threatens the United States.
Secession raises foundational political and legal questions about the United States. Why are we talking about secession now? To what extent, if any, is secession viable? And what can we learn from discussing the prospect of secession? To address the issues raised by these queries, I asked four law professors to address the following questions: “Should We the People be concerned about the prospect of secession? Why or why not?”
Even With Today’s Political Polarization, Could Secession Occur?
Mark Graber, University System of Maryland Regents Professor at University of Maryland School of Law, does not view secession as viable. He wrote:
Americans should be more concerned with a possible invasion from Grand Fenwick[1] than a realistic effort by any state, combination of states, or regions to secede from the United States. Secession is a possibility when nations are extremely polarized by section. This is not true of the present United States. Talk of red states and blue states fails to capture how the more fundamental divides are now between the red rural regions and blue cities that exist in every state of the Union. The Eastern Shore of very blue Maryland is bright red. Voters in Houston in very red Texas send very blue members to the House of Representatives. Complicating matters further, as a map of votes in the most recent New York Mayoralty primary indicate, pockets of red and blue exist throughout the United States. County seats in rural counties are often more purple that red, as is the case for Staten Island in very blue New York.
Sandy Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas School of Law, concurred with Professor Graber’s assessment. He wrote:
The academic in me says that it’s key to identify what subsets of “We the people” we’re talking about. Should this be referring to “the people in general”? Should they be concerned about the prospects of secession? The answer is, “probably not,” for the reasons that Mark Graber sketches out. For better or worse, it’s not going to happen. The circumstances that allowed secession in, say, the American colonies in 1776, Norway in 1905, or even, more recently, South Sudan or Montenegro, are simply not present in the United States.
As Graber argues, altogether correctly, the desire to a civil divorce, which I sometimes share, is utterly unrealistic, for the simple reason that the cleavages—the “polarization”—really do not take the neat geographical form that makes secession politically viable in earlier times and places. Vermont could secede from New York and New Hampshire in the 1770s because there was a distinct identity of being a “Vermonter,” or, at least, a strong enough such identity among elites (and those with guns) to make the secession completely viable, even if New York and New Hampshire, whatever they proclaimed in the Declaration of Independence, were unwilling to recognize Vermont’s legitimacy until 1791. One could offer similar analyses of Norway or Slovakia.
But that doesn’t work even for my favorite example of “Pacifica,” i.e., the states abutting the Pacific Ocean that, collectively, certainly cannot be identified with the Make America Great Again (MAGA) movement and could certainly make a go of it, at last if one looked only at economic data, should they split off.
Professor Levinson noted that secession should not be understood as a state or several states seeking to secede from the nation; secession encompasses the possibility of a more local realignment. He wrote:
California in fact includes significant areas that reject the liberalism of the coastal cities. Indeed, at one time, there were no fewer than six “secessionist” movements within California, including the disgruntled inhabitants of a would be “Jefferson” in far Northern California that understandably felt ignored by the rest of California. Similarly, there is in contemporary Oregon a vigorous group of eastern Oregonians whose fondest wish is to exit from Oregon—and the dominance of Portland—and instead join the more compatible Idaho, just as a group of southern Illinoisians would apparently be happier in Indiana.
Incidentally, even if this is enough to invalidate any heated claims for secession by California from the United States, it has little or no application to a far different question: Is there any good reason to force the disaffected Oregonians into remaining in Oregon instead of acquiescing to their wish to become Idahoans, assuming that Idaho will welcome them? I see no good reason to disallow their move, should it be registered in a democratic referendum. So, at the least, this suggests a desirability, even “practically” speaking, in offering a somewhat nuanced understanding of “secession” and its viability.
Professor Jorge Roig, my Touro Law Center colleague, saw the issue of the viability of secession from a different perspective. While Professors Graber and Levinson focused on geography in dismissing the prospect of secession, Professor Roig suggested that, conceptually, we now should be “profoundly” concerned about its possibility. He wrote:
The ideological and political core of the American Republic, the Project of 1776 as institutionalized through the U.S. Constitution of 1789, or whatever one wishes to call it, was the rejection of monarchy in favor of a democracy governed by laws, not by the whims of any single individual. This defining principle has crumbled irreparably following two Supreme Court decisions: Trump v. United States in 2024 and Trump v. CASA, Inc. this year.
Professor Roig elaborated:
A year ago, the Court effectively granted the President absolute immunity from criminal prosecution. Behind the veil of argument hides the practical reality of a ruling that deems inadmissible against the President any and all evidence of presidential intent or communications with aides. This reality makes prosecuting the President an impossibility.
Then, just a few weeks ago, the Court affirmed the power of the President to execute blatantly unconstitutional orders—such as stripping someone’s citizenship or disappearing people to a lawless prison in a war-torn country, without any pre-deprivation process—until separately challenged in court by affected individuals. Again, the practical consequences of this ruling are that persons whose citizenship or legal presence status has not been determined through any process whatsoever may be kidnapped and disappeared before their next of kin or attorney is even notified—citizens included, ID or not.
Professor Roig concluded:
We have already seen masked unidentified individuals throw people into unmarked vans and detain them for weeks or deport them without any process. Together, these two opinions eliminated not only criminal accountability for the President, but also any effective judicial, civil, and administrative remedies against the executive branch. The American President now rules above the law, no longer subject to it and indistinguishable from a monarch. With the American Republic thus dismantled, there is no meaningful legal barrier left to secession.
The Merits of Discussing Secession
While Professor Graber views the possibility of secession as less than remote, he went on to explain his opposition to the concept for the United States today. In his view, “far more of the world’s problems require global solutions than more local governance.” Professor Graber elaborated:
Talk of secession that ought to have a real place in academic setting is doubly dangerous when leaked to the public. The United States is littered with too many groups whose violent fantasies are likely to be stoked further by public chat suggesting their vision of New Texas or Ancient Vermont has powerful roots in political theory.
More important, as Ran Hirschl and Ayelet Shachar note, far more of the world’s problems require global solutions than more local governance. Climate change, pandemics, and containing nuclear weapons are matters that require expanding the boundaries of traditional nation-states rather than, as secessionist dreams would suggest, breaking up the world into very small pieces all of which will, at best, demand a place at the bargaining table when global problems are on the agenda, and at worst, accelerate races to the bottom that threaten at best, global catastrophe, and, at worse, human extinction.
Professor Levinson expanded on the value of discussing secession in an academic context. He wrote:
While I agree with Graber that state secession is not in the cards, that doesn’t necessarily mean that it is not a valuable “teaching moment” for academics to address the theoretical legitimacy of secession. After all, if the only argument against it is its impracticality, which may in fact be dispositive, that says nothing about the legitimacy under different circumstances, where, for example, a given state really was united in its belief that it wanted to leave a Union that it no longer felt to be compatible with its own highest values and aspirations.
I am completely confident that not one of us supports or opposes every single secessionist movement now or in the past simply because it is, after all, disruptive. No American can in good faith be systematically anti-secessionist and continue to support what I insist on calling American secession from the British Empire or, for that matter, the creation of Vermont out of parts of New York and New Hampshire. Would any of us bewail Norway’s leaving the Swedish embrace in 1905 or the Baltic countries or Ukraine exercising their right under Article 72 of the old Soviet Constitution to exit from the Union of Soviet Socialist Republics?
On the other hand, I’m confident that all of us would condemn the enslavers who wished to destroy the Union in 1860-61 for no genuine reason other than enhancing enslavement. Were we to look at contemporary examples, whether Brexit or secessionist movements in Scotland, Catalonia, or elsewhere, I’m confident that we would readily agree that reasonable people could disagree in good faith, particularly if we purport to take the Declaration of Independence seriously. That document, after all, is a hymn to the legitimacy of “popular sovereignty,” the legitimacy of “one people” arising to throw off the perceived shackles of domination by another people. It might help, so to speak, if there’s a “long train of abuses,” but there is nothing in the first paragraphs of the Declaration that requires such abuses. It is enough that “one people” be deprived of their right of what would later be called Wilsonian self-determination.
Regarding “Wilsonianism,” as he called it, Professor Levinson declared:
As it happens, I believe that Wilsonianism is the most important idea to have survived from the 20th century, at once inspiring and almost endlessly mischievous in its political implications. But that point, too, is certainly worth making among those who presumably enter the university system to be engaged by important, and sometimes disturbing, ideas. To rule “secession” out of order is to deprive our students of the opportunity to debate a truly important idea that is central not only to American history, but, far more importantly, to understanding world politics and world history across the globe.
Professor Levinson concluded:
If secession is in fact “off the table” in the United States for intensely practical reasons, is that to be cheered or lamented? I am not sure what the answer is. I sometimes believe that the country is simply way too large and diverse to be governed effectively by a single national government. On other occasions, I believe that the crying need is to move toward some kind of world government that will make possible the kind of collective action necessary to meet, say, the crisis of climate change, including handling the refugees that climate change will inevitably create.
What I am most confident of is that the United States in no conceivable way has reached a “Goldilocks equilibrium” of being “just the right size.” It may be either too small or too big, with different implications depending on which you emphasize. But I am confident that it is a question worth asking, even if the answers are likely to differ. That is, after all, what education, at least before the days of STEM, was all about!
Another View of the Republic Today
Having heard from Professors Graber, Levinson, and Roig, we now turn to the views of Professor Tiffany Graham, also my colleague at Touro Law Center. Professor Graham wrote:
The question in front of us is a fascinating one: “Should We the People be concerned about the prospect of secession?” This question, however, raised a different one for me: Is it possible that secession, in some scaled-down fashion, has already begun?
There are multiple benefits that flow from reframing the question in this way: (1) It accounts for deep cleavages in the body politic that have led to multiple forms of politically and legally feasible separation and which show little sign of abatement; and (2) It allows us to evade tricky problems like the following: the legality of secession (in an unsurprising, if ironic, turn, the Supreme Court stated in Texas v. White (1869) that the nation which seceded from Great Britain did not constitutionally permit such recurrence in the future); the queasiness that might arise if you find yourself looking for intellectual solace from slavers like Alexander Stephens, the Vice-President of the Confederacy, who mounted a legal defense of secession; the practical problem of structuring the split, given the geographically fragmented nature of our political divides (do the blue states get to include cities like Austin and Atlanta in red/purple states, and can red states incorporate parts of Long Island and Bakersfield?); and, the widespread horror of a descent into violence that the prospect of secession might force us to consider.
The Civil War settled our sectional dispute at the point of a rifle and most Americans do not wish to make the sacrifice in blood or treasure that a similar kind of conflict might require. So, asking if some of us have filed for a legal separation rather than picking up a gun conjures up the possibility that a real split might be (somewhat) cordial.
Professor Graham then turned to the question presented. She wrote:
But what do we make of the argument that some form of mini-cold war secession has already started? A professor from the College of Charleston, Michael J. Lee, offered a provocative argument in his essay, “Secession is Here: States, Cities, and the Wealthy are Already Withdrawing from America.”
Professor Lee suggested that formal secession is the end point of an exit process that actually happens in stages, like deliberately sorting into neighborhoods with like-minded people; to setting up intentional communities of people who live “off the grid;” to passing laws that explicitly attempt to nullify policies like federal gun restrictions or that provide sanctuary from federal immigration enforcement; and more. (Jessica Bullman-Pozen and Heather K. Gerken explore states resisting federal policy in their “Uncooperative Federalism” article published in the Yale Law Journal in 2009.)
None of these examples constitute secession in the manner envisioned by the Confederate withdrawal in 1860-1861, but they certainly reflect the stark polarization that increasingly defines the United States. They are simply additional examples of a pointed rejection of the political and cultural consensus that still, to some degree, remains.
In her conclusion, Professor Graham asked, “Could these ‘soft exits’ forestall a formal separation?” Her answer sounded a hopeful yet cautionary note: “Probably. But given the intensity of our politics, the viciousness of some recent conflicts (for example, the ‘Unite the Right’ rally in Charlottesville in 2017 that turned violent and the United States Capitol attack on January 6, 2021), and the depth of our divides, it is always fair to ask if that conclusion is just wishful thinking.”
During the pandemic, I took a marvelous course on the history of democracy taught by Professor Andrew Robertson at the City University of New York’s (CUNY’s) Graduate Center during which we surveyed, among other things, the developments before and after the Civil War. After taking the class, I sometimes ask whether we are replaying some version of the 1850s today. One answer is clearly no, as nothing in our politics is as offensive and divisive as the institution of slavery. But it’s hard to overlook the troubling aspects of our recent history described by Professors Roig and Graham. Ultimately, I believe—and certainly hope—that Professors Graber and Levinson are correct that secession simply isn’t feasible today in the United States. Of course, as Professor Levinson explained, that doesn’t mean we shouldn’t study it.
[1] See Leonard Wibberley, The Mouse that Roared (1955).
