University of Tennessee Law School professor Glenn Harlan Reynolds looks at the precedents and concludes it could happen
ORIGINALLY PUBLISHED: Updated 28 Feb 2018 at 12:24 PM, 5 Aug 2018
Secession was banned for all time when the Northern states defeated the Southern Confederacy in the Civil War, right? Well, no, it wasn’t.
In fact, University of Tennessee law professor Glenn Harlan Reynolds sees the following scenario as a possibility not out of the question in the near future:
“In the summer of 2021, following the California financial crisis and CalPers pension collapse, public employee-supporting Democrats from the California General Assembly absented themselves from the state, preventing a quorum so that legislation slashing pension payouts could not be passed.
“That absence stretched from days into weeks, as the state government largely shut down for lack of funding. Seizing on this moment, 34 counties from the eastern and rural parts of what was then California organized themselves and sent representatives to Fresno, where those representatives declared themselves the new, official California General Assembly and designated individuals of their choice as the new, official governor and attorney general.
“The new legislature and officials were quickly recognized by President Donald Trump, who, citing his authority under the Insurrection Act and Article IV section 4 of the United States Constitution, deemed them the official government of the state, and sent federal troops from the 101st Airborne Division to Fresno to ensure that what he called ‘leftovers’ of the ‘old, failed state government’ were unable to ’cause trouble.’ President Trump’s recognition was echoed in a joint resolution of the Republican-controlled Congress, which perhaps anticipated the addition of two new Republican senators.”
Far-fetched? Fanciful? Not at all, Reynolds argues in “Splitsylvania: State Secession and What To do About It,” available in abstract form and downloadable at SSRN.
In addition to being a law professor, Reynolds is the founder and long-time proprietor of Instapundit.com, one of the first political blogs to achieve and maintain national influence from the early days of blogging.
“Intrastate secession isn’t exactly new in the United States: West Virginia was once part of Virginia, for example, and Tennessee was once part of North Carolina, though that evolution was less fraught,” Reynolds writes.
“But in recent years, we’ve seen a number of states facing calls to split, from inhabitants of regions who feel effectively unrepresented. In New York State, for example, there have been repeated calls to split upstate New York from the New York City region. One such proposal involves letting the NYC area keep the name “New York,” while the new upstate state would be named “New Amsterdam.”
There have been other movements as well, some larger and noisier than others, to split Chicago off from the rest of Illinois, break Texas into six separate new states, and to create two new states out of the eastern sections of Washington and Oregon.
California, though, remains the place where a determined citizen movement may be most likely to pursue a successful intra-state secession, a la West Virginia's withdrawal from the Commonwealth of Virginia during the Civil War, according to Reynolds.
"Perhaps better publicized is Silicon Valley entrepreneur Tim Draper's plan to split California into six states, one of which would be, essentially, Silicon Valley's own preserve. Though Draper's plan did not make the 2016 ballot, it served as a useful outlet for complaints about unrepresented parts of the state," Reynolds writes.
Note: The Tim Draper's 3 state plan known as Cal 3 was started in August of 2017 and by April 2018 collected “about 600,000” signatures for a new petition to divide California, this time into three new states. In June 2018, the petition collected a sufficient number of signatures to qualify as an initiative in the 2018 general election. On July 18, 2018, The California Supreme Court blocked the measure known as Proposition 9 from appearing on the November 2018 ballot.
The three-state initiative, Proposition 9, had gathered enough signatures to qualify for the November ballot. Nine days after opponents filed suit, the court issued a unanimous order removing the measure from the ballot and ordering further legal arguments on whether it should be placed on another ballot in 2020 or struck down altogether.
In order to be successful, though, Reynolds suggests that it must "also please the residents of inland and northern California, who feel that California state government — with its heavy interests in the Los Angeles and San Francisco Bay areas — views them with indifference or even hostility."
Reynolds points to a second, more moderate effort to split California into two states by sundering the coastal areas into one jurisdiction and the rest of the state into the other, with the latter to be known as "New California."
This essay is a helpful reminder that secession movements are not out of the question in a nation as polarized as America in 2018.
He quotes CBS News' reporting that "unlike other separation movements in the past, the state of New California wants to do things by the book, citing Article 4, Section 3 of the U.S. Constitution and working with the state legislature to get it done, similar to the way West Virginia was formed ... The group is organized with committees and a council of county representatives, but say it will take 10 to 18 months before they are ready to fully engage with the state legislature."
Reynolds is not encouraging any of the secession movements, and he describes the numerous legislative, regulatory and political obstacles that crowd the road ahead for all of them. But his essay is a helpful reminder that it's not out of the question in a nation as polarized as America in 2018.
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