By Dr. Harold A. Black
Before the Civil War, this country was referenced as a plurality as in “the United States are.” Afterward, it became singular: “the United States is.” Now it may be appropriate to once again refer to the country as a collection of individual states. I seriously believe that within my grandchildren’s lifetimes, there will be efforts by some states to secede due to irreconcilable differences with those in power at the Federal level. I have a friend who thinks that the administrative state will thwart any Republican president leaving the Democrats de facto in power into perpetuity. If that were the case, then certain states would find increasing support to justify secession. The question is whether that secession will be peaceful, unlike the attempt in 1861. If part of a state wants to secede and create its own state or join another state, secession is virtually impossible because it requires approval of the state itself. Thus, although Staten Island would like to secede from New York City, the state of New York won’t allow it. The same goes for regions that want to secede from California, Illinois, Virginia, Washington and Oregon. Their state legislatures will veto every effort. Such was not always the case. In the early years of the nation, New York ceded Vermont, Virginia ceded Kentucky, Massachusetts ceded Maine and North Carolina ceded East Tennessee. West Virginia was carved out of Virginia and is an illegal state. The western counties of Virginia were pro-Union and voted against secession. When Virginia seceded, the western counties formed a new Virginia legislature and approved its secession. The U.S. government recognized the rogue legislature and admitted the new state as West Virginia over the protests of the government in Richmond. In 1871, the Supreme Court in Virginia v. West Virginia upheld the unconstitutional secession as constitutional. Now the western counties of Virginia want to join West Virginia. Although West Virginia approves of such a move, Virginia does not so those counties are stuck with being dominated by the DC suburban counties and liberal Richmond. Another instance involved Texas seceding from Mexico in 1836. Mexico did not recognize the secession and tried to use force to stop it. Legends were made. Davy Crockett, Jim Bowie, William Travis, the Alamo, Santa Anna, Sam Houston and the Battle of San Jacinto were the result. Texas then petitioned to join the United States and was accepted resulting in the Mexican-American War. I have often wondered what would happen if Alberta which is always at odds with the government in Ottawa would try to secede from Canada and join the United States. Would the Congress vote to accept them and if it did, would Canada threaten war?
The esteemed Justice Scalia said, “If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede.” There is little chance that any effort by a state to leave the union would get the approval of both houses of Congress and three-fourths of the states. However, I do wonder if there were serious civil discord within a state (or states) that became violent against Federal authorities and that state’s national guard were poised to fight against the Federal government, if there might not be a mutual agreement to part. Perhaps we should revert back to the Articles of Confederation which were adopted by the Congress in 1777 that bound the 13 colonies to a weak central government. There are reasons why that arrangement did not work in 1777 but might work in 2023. Switzerland is a modern confederation made up of 26 cantons and a relatively weak central government. It seems to function as a nation. If our differences are truly irreconcilable then perhaps a confederation is our only hope to survive as a nation.