It’s beginning to feel a lot like the 1860s — and not just because Steven Spielberg’s Lincoln opened nationwide this past weekend. There is a secessionist movement afoot: 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 site promises that petitions that garner more than 25,000 signatures within 30 days — subject to some exceptions — will get a response from the White House.
What exactly are the states’ grounds for seceding? The answers are 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 throws in alleged 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, “Corruption,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 Nov. 14: “Secession Movement Explodes.” And articles have been appearing elsewhere online with headlines like “Is Secession the Answer for Utah?” (If it is, what exactly is the question?)
Of course, anti-secessionists are gleefully responding. Chuck Thompson, the author of Better Off Without ’Em: A Northern Manifesto for Southern Secession, has written a piece titled “Go Ahead and Secede, Texas. I Dare You.” In it, he argues that the small-government utopia that Texas secessionists are dreaming of — 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, 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 that 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 a provision for states to leave the union. A state would have to leave 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 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 No. 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 is a legal basis for secession — a letter that it is remarkable for being answered by a sitting Justice — Scalia wrote in 2006, “[The] answer is clear. If there was 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 re-examined, because for all the secessionists’ petitions, they remain a perversely small minority. Even in the states that are racking up the most signatures, governors have been quick to distance themselves from secession talk. The conservative Republican governors of Alabama and Texas have come out publicly against secession, and the governor of Louisiana — whose state’s signature total was second only to Texas’ on Nov. 14 — called the idea “silly.”
In fact, just like 150 years ago, pro-union forces are starting to respond with vigor. A petition recently went up on We the People titled “Deport Everyone That Signed A Petition To Withdraw Their State From The United States Of America.” It has gotten more than 24,000 signatures, and counting.