Short Take: The New State of Confusion

At Volokh Conspiracy, Eugene discusses whether San Bernardino County, next to Los Angeles County and with 2 million residents, can decide to secede.

Can they do that? Why, yes, they can, but only with permission of the state from which they’re seceding as well as of the federal government. Article IV, section 3 of the U.S. Constitution provides,

[N]o 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.

The provision allowing such actions with the states’ and federal government’s consent appears to apply to both the “erected within” clause and the “formed by the Junction” clause, and indeed this is what happened when Kentucky seceded from Virginia in 1792 and Maine seceded from Massachusetts in 1820.

Eugene makes an assumption that might be unwarranted. Do they want anyone’s approval? Are they asking anything of California or the United States, or are they just deciding whether to fly solo and, short of an armed invasion to force them to remain a portion of a state with which they no longer care to belong or a nation to which they are no longer devoted, really don’t give a damn whether it’s good with them or not.

Will they get two senators? Not without the federal government’s permission and blessing. Then again, if they go independent, they won’t have to send tax money to Washington either. Will DC put up with such insolence? The optics of the military invading San Berdoo could make for an interesting Netflix docudrama, but could turn ugly.

Of course, this all seems rather silly in real life, but consider that we are a nation of many governments, state and local, who at one point in our history made the decision to seek membership in the entity of the United States. By doing so, we assumed certain obligations as well as benefits, and accepted the rules as they were and would be going forward when decided in the method agreed upon.

An awful lot of folks these days fail to connect up the voluntariness of this association. They have their ideas of right and wrong, and are so certain of their correctness that they are prepared to ram it down the throat of anyone who thinks differently. More to the point, they want laws to do their dirty work, whether to force people to do what they don’t want to do or prevent them from doing what they do.

There’s a lot of cheap talk about a civil war, which involves going to war, a fevered dream that swiftly falls apart when the first person gets shot. But walk away? Take a vote and decide that a unit of government, a group of people who have joined together to run their little slice of heaven, has decided they no longer like the way the rest of the nation is going and decide to put up signs at their border that says “The Sovereign Nation of San Berdoo.” What are you gonna do about it?