California doesn’t need a constitutional amendment to secede from the United States

One major reason – perhaps it would be better categorized as a rumor – that some are reluctant to get behind the campaign for California independence is because they believe the path to achieving this goal is so narrow that other options ought to be explored. The idea that California requires a constitutional amendment to exit the Union is one of such rumors.

The only legal opinion we have on the constitutionality or unconstitutionality of secession dates to the 1869 ruling in Texas v. White. In that ruling, the Supreme Court ruled that a state may only secede with the “consent of the states” – their words, not ours – or by “revolution”. The Supreme Court did not say a “constitutional amendment”, which would require a two-thirds vote in both houses of Congress and the approval of three-fourths of the states’ legislatures. A high bar indeed.

So, what could “consent of the states” possibly mean?

  • SENATE CONFIRMATION: With the adoption of the 17th Amendment to the U.S. Constitution, senators started being elected by direct popular vote of the people of the states. However, in 1869 when the Supreme Court wrote that a state may secede with the “consent of the states,” senators were still being chosen by state legislatures. Perhaps a state may exit the Union with the consent of the Senate just like the Senate holds another unique power related to granting consent: presidents may make appointments only with the “advice and consent” of the Senate.
  • ACT OF CONGRESS: In 1850, the House of Representatives and Senate voted to adopt Senate Bill 169, “a bill for the admission of the State of California into the Union.” This bill passed in the Senate on August 13, 1850 by a vote of 34 Ayes, 18 Nays, and 8 abstentions, and in the House of Representatives on September 7, 1850 by a vote of 150 Ayes, 56 Nays, and 21 abstentions. Thus, California was admitted into the Union with the consent of the states by an Act of Congress by a simple majority vote and so the question is: what if Congress repealed Senate Bill 169? Such repeal would only require a simple majority vote in both houses of Congress.
  • STATE LEGISLATURES: Perhaps the most direct and literal interpretation of “consent of the states” would take the question out of the hands of the federal government and place it entirely in the hands of the states. There being fifty states in the Union, California would require twenty-five state legislatures to adopt a resolution granting California consent to leave. Certainly, the adoption of such a proclamation by twenty-five state legislatures – California being the twenty-sixth – would constitute “the consent of (the majority of) the states”.

What does consent of the states mean? Nobody knows because this question hasn’t been officially answered. But we can say for sure that “consent of the states” does not mean “constitutional amendment” and therefore California – or any state for that matter – would not require the approval of two-thirds of both houses of Congress and of 36 state legislatures to exit the Union.

We could obtain the “consent of the states” by Senate confirmation (majority vote), by an Act of Congress to repeal Senate Bill 169 (majority vote), or by the adoption of a proclamation granting consent to California to exit the Union by a majority of the state legislatures. Granted, these are still high bars to pass but they are all much more feasible than a constitutional amendment, and as far as option three goes, considering the number of conservative states in America’s heartland and the south, this may not be as difficult to achieve as it seems.

10 comments on “California doesn’t need a constitutional amendment to secede from the United States

  1. August 2, 2017 Kurt Hines

    California doesn’t have a military. I know you think it does. Those National Guard troops all took an oath of Loyalty to the United States and to the U.S. Constitution. So you don’t need a Constitutional Amendment. You need an army.

    • August 14, 2017 scott grimm

      Peaceful transition. Lease the military base to the United States for 25 years. Gradually build our army from theirs. I’m sure Cali’s Military will have better benefits and a better world vision

  2. August 2, 2017 Claude Slage

    This should get done really fast! Boot the California traitors!

  3. August 4, 2017 Ben Tallmadge

    Aside from the legal path the DNC will NEVER give up CA….55 Electoral Votes and hundreds of millions of dollars from wealthy donors….Game of Thrones folks!!

    • August 14, 2017 scott grimm

      Understandable. That’s why we need a new party. The California National Party. We need to unify and watch our flag ascend.

  4. August 6, 2017 Forthright

    Calexit is a bunch of ignorant cowardly traitors calling for armed civil war. No amount of populist voting by San Francisco Los Angeles and Sacramento’s large populations can force rural Californian’s, who are already disenfranchised and bullied by urban populations, to leave the USA. Calexit does not support others right to self determination yet seek their own myopic vision while further destroying ours. It will not stand and the second amendment was created for just such ignoble tyranny. Come take my federally patented land in the National forest. I support the USA, the constitution and my local sheriff. Calexit can either seek representation for all of us in California or continue on their present path towards civil war.

    • August 14, 2017 scott grimm

      Ignoble tyrrany? Have you seen the news lately?

  5. October 27, 2017 Peter Berg

    First of all something like 49% of the land in the state belongs to the federal government. Second of all the rest of the United States is not going to abandon its citizens in California who don’t want to give up their citizenship or their property for the dubious privilege of California citizenship. Third California would have to assume their share of the federal debt and fourth your citizens would be forfeiting their passports, Social Security, Medicare, and federal pensions. Fourth you would have to pay us back for all the roads, bridges, ports, highways, railroads, dams, and water projects we built in your “new nation”. Fifth I for one would just as soon sell you back to Mexico as complicate my life with another socialist dump on our border.

  6. October 27, 2017 Former San Diegan

    I have no problem whatsoever with Calexit. One caveat: don’t expect any relief funds when the Cascadia and San Andreas faultlines decide to rip your country a new one. Bon voyage!

  7. December 15, 2017 Bob

    You guys don’t really have a plan, just a sales pitch. You’re going to need a better plan and be able to articulate how the new nation will operate.
    What type of government it will it be? Will you have a president, house and senate? Parliament and Prime Minister? What’s the plan for California’s existing Constitution? There are many things that are in the U.S. Constitution that aren’t covered or have weaker protections in the California version.
    What’s your plan for gaining support of people in conservative counties that feel the same way about Sacramento politicians as you do about Washington, D.C. politicians?


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