“. . . if Texas decides they want to do that [secede] they can do that,
but I don’t think that if that whole state says we don’t want to be
part of America anymore I mean that’s their decision to make . . .”
Nikki Haley, January 31, 2024, speaking on The Breakfast Club
“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.”
“So you want to secede from the U.S.: A four-step guide,” Washington Post, July 26,2016
“What the Constitution says repeatedly is once you’re in (as a state), you’re in.
If people want to secede, they are allowed to leave; they just can’t take the land and the water with them. There is a lawful way to secede – it’s called emigration. They can move to Canada.”
Akhil Reed Amar, Sterling Professor of Law and Political Science at Yale University
Secession 101
Nikki Haley’s relationship with the Constitution is somewhat distant when it comes to secession. In 2010, for example, she gave almost a verbatim version of her comments last Wednesday. Then, she was asked directly by the pro-Confederacy group Sons of Confederate Veterans whether states have the right to secede, and she replied, “I think that they do, I mean, the Constitution says that.” She hasn’t learned the correct answer in the intervening 14 years. In fact, the Constitution has no provision permitting secession.
No state may legally secede based only upon the will of that state’s people. In the post Civil War year of 1869, in Texas v. White, the Supreme Court settled the issue when Chief Justice Salmon Chase wrote,
> “The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.”
> “When Texas became one of the United States, she entered into an indissoluble relation. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.”
> “All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.”
> “The ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law.”
Texas v. White, 74 U.S. 700 (1869)
More recently, in 2020, Justice Antonin Scalia observed in a letter to a screenwriter researching secession, “If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, ‘one Nation, indivisible.’)” The screenwriter’s brother reported that Justices Sam Alito, Clarence Thomas, and Stephen Breyer responded in the same spirit and noted that “the responding troika of Scalia-Alito-Thomas form 3/4 of the conservative wing[.]” That’s principled conservatism.
Then, what are the arguments that the Constitution permits secession, implicitly, if not explicitly? I’ll tackle that in a post next week.
