How: Separation versus Secession
Many argue that the Civil War settled the issue about a state having the right to secede from the Union. Secession is unilateral act and it does
seem that the Civil War did establish clearly that no state can unilaterally withdraw itself from the United States. However....
Article IV, Section 3, Clause 1 of the Constitution provides as follows: "New States may be admitted by the Congress into this Union; but no 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."
"Implied powers" is an accepted legal concept. One could reasonably argue that if Congress has the power to admit states to the Union and, further, has the
power to create a state from an existing state or states with the permission of the state or states involved, then it is implied that Congress has the power to remove a state from the Union with
the permission of the state involved.
Additionally, the 10th Amendment provides as follows: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
This would seem to imply that where clarity in the Constitution is lacking, when a state is involved in something such as removal from the Union, if it has approved the idea of being out of the
Union that ought to be sufficient.
In other words, if the Legislature of California asks to be permitted to withdraw from the United States and Congress approves, then the separation
of California from the Union would be pursuant to a bilateral agreement between the parties and legally sufficient.
Obviously, such an agreement would come about through the negotiation of an "Agreement Document" which presumably would cover the complex issues involved and would
ultimately have the legal status of a treaty. And, just to assure the democratic nature of the action, it should only be effective if approved by California voters in a referendum.
This would lay to rest the question of the existence of the implied power since the State and its people would have approved the action.
Secession is a hostile act involving insurrection and rebellion. Separation is accomplished could be accomplished in a process of mutual respect, understanding, and
So, the steps would seem fairly straightforward:
1. The Legislature adopts a resolution requesting that Congress consider removing California from the Union.
2. A resolution be adopted by Congress providing for a process for developing an Agreement for the separation of California from the Union subject to the approval of the State.
3. Upon completion of the process leading to a proposed agreement, Congress approves the Agreement and forwards it to the Legislature.
4. The Legislature proposes an amendment to the State Constitution approving the agreement and calling for a constitutional convention to develop a new California
Constitution which proposed amendment is submitted to the voters.
5. If the voters approve the amendment, then California would become a separate nation pursuant to the agreement and would establish its own national constitution.
It seem as though such a legal process is fairly straightforward, albeit difficult to get accomplished.