When my little sister graduated from high school outside of Dallas earlier this month, I was reminded of the extent to which the country’s second-largest state (in population and area) fancies itself a reluctant participant in this whole “United States” thing. Every morning for years, my sister’s schools would ask that she pledge allegiance to both the United States and the state of Texas, as though her loyalty to one or both may have waned between 3 p.m. and 8 a.m. on any given weekday.
That those two loyalties might be in conflict was also apparently never addressed. After President Obama was re-elected in 2012, more than 125,000 people signed a petition asking for the government to allow the Lone Star State to go its own way, withdrawing from the United States and forming its own nation. That sentiment was revisited earlier this year, with Republican activists in Texas pushing to include a pro-secession plank in the party platform. (It didn’t happen.)
Britain’s vote last week to extract itself from the European Union has, perhaps predictably, revived interest in the idea of a state separating itself from the U.S. This is not an apple-apple comparison; the EU’s composition is fundamentally different than is that of the United States — as is its history. But in light of that, and in light of offering hope to those thousands of Texans who really prefer the Texas pledge of allegiance to the U.S. one, we figured we’d put together a little guide to how to try and secede from the United States — ranked in order from least to most likely to succeed.
Option 1: Ask politely
Odds of success: Zero.
This is the route that those 2012 petitioners attempted. It asked the White House to “[p]eacefully grant the State of Texas [the right] to withdraw from the United States.” To which the White House said, “haha no.”
“Our founding fathers established the Constitution of the United States ‘in order to form a more perfect union’ through the hard and frustrating but necessary work of self-government,” the administration’s Jon Carson wrote in response to the petition. “They enshrined in that document the right to change our national government through the power of the ballot — a right that generations of Americans have fought to secure for all. But they did not provide a right to walk away from it.”
That last part is accurate. Reached by phone, Columbia University Law School professor Gillian Metzger put it succinctly. When it comes to a state trying to remove itself from the union, “I don’t see existing constitutional support for that.”
Article IV, Section 3 of the Constitution specifies how a state can gain admission to the United States. There is no stipulation, though, for the reverse. Even if Obama wanted to let Texas go — a thought that probably appealed to him for at least a second — there’s no mechanism for him to do so. There’s no mechanism for Congress to simply say, Sure, off you go. Once you’re in, you’re in. The United States was born an expansionist enterprise, and the idea of contraction, it seems, never really came up.
Note that Congress did allow part of Virginia to secede — the part that became West Virginia. There are a lot of things about this that are unique, including that Virginia, at the time, had declared itself outside of U.S. Jurisdiction. (See option 3 below.) But also note that Article IV, Section 3 specifically allows Congress to do this: “[N]o new states 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.” Congress consented to the creation of West Virginia as a new American state.
Option 2: Amend the Constitution
Odds of success: Low.
So if the Constitution doesn’t allow you to back out of the union, there is a fix: Amend the Constitution.
This is not an easy fix, as such. Amending the Constitution requires approval of the amendment by either 1) two-thirds of each branch of Congress or 2) two-thirds of states at a specially-formed constitutional convention, with the amendment then being ratified by three-quarters of the states. This is difficult enough that it has been done only 17 times in 227 years, excluding the passage of the Bill of Rights shortly after the Constitution itself was ratified.
But, sure, let’s say this can be done. What would that amendment look like? Amending the Constitution is a bit like editing the source code for an operating system: Once you’re there, you can do whatever you want. Maybe you want to build a mechanism for states to leave the union in the future. Maybe you just want to let Texas go do its own thing. If you can convince 38 states to go along with whatever you want to do, you can do whatever you want.
If you can’t?
Option 3: Withdraw by force
Odds of success: Basically zero.
In 2006, Justice Antonin Scalia was asked by screenwriter Dan Turkewitz if the idea of Maine seceding from the country made sense as a possible plot point. Scalia, perhaps unexpectedly, replied.
“I cannot imagine that such a question could ever reach the Supreme Court,” Scalia wrote. “To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. . . . Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.”
Let’s parse out that first point, that the question of an ability to secede was settled by the Civil War. (The second point basically goes back to Jon Carson’s comments: Asking the U.S. if you can secede from it is a bit like asking your iPhone if you can use it as an iron lung. It’s not built to do that, and also: No.)
When the Confederate states seceded in 1861 and were then defeated in the Civil War, the argument is that they demonstrated that you can’t secede from the Union. The 1869 Supreme Court case Texas v. White (Texas! Always Texas.) determined that the secession was never actually a real thing in the eyes of the federal government. The Confederate States of America wasn’t an independent country any more than your house is its own country simply because you say it is. “The Constitution, in all its provisions,” the justices wrote, “looks to an indestructible Union composed of indestructible States.”
But this argument has a flaw: What if the Confederacy had won the Civil War?
Had the federal government lost the war, some accommodation would necessarily have been made to allow the states their independence. Sure, the government could have kept saying that Alabama and Georgia and Texas were still part of the U.S. in the way that nations insist on rights to disputed territories, but those states would have ignored that claim. There’s no right to secede and no process to secede — but if you secede and then beat the United States militarily, the dynamic changes.
This is a much more difficult prospect than it used to be. There exist state military groups that might be called into service in an armed conflict against the U.S., but, particularly if we’re talking about one state seceding and the rest of the country disagreeing, that’s a tough fight to win. The United States has a big military. If you carve out the part of that military that’s loyal to Texas, you’ve still got an outfit with a lot of troops, tools and terrain that can weigh heavily against the rebels.
If those three options fail, there’s only one left.
Option 4: Await the collapse of the American experiment
Odds of success: 100 percent.
It’s very possible, if history is any guide, that the United States will, at some point, cease to exist. Perhaps it will be because of internal dissent, as in option 3. Perhaps it will be overrun by some other entity; perhaps it will simply pull an ancient Rome and slowly dissolve at the seams. (Yes, I know this is overly simple, but you get the point.)
If Texas can simply wait this “U.S.” thing out, it can create its own domain once again, under whatever boundaries it sees fit. (Unless the destruction of America is brought about by hostile forces; if that’s the case, those invaders may have some thoughts on what ensues.) The United States and its Supreme Court and its Constitution and its White House petitions go away, and Texas can be Texas. Texas will have no choice but to be Texas. This isn’t really secession, any more than surviving the collapse of a poorly-constructed prison constitutes a jailbreak, but regardless: The long-standing dream will have come true.
And Texas schoolkids will get to save 30 seconds a day, an hour-and-a-half a year, by skipping the pledge of allegiance to the U.S. There’s basically no downside.