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with the consent of the states by an Act of Congress by a simple majority vote and so the question is: what if Congress repealed Senate Bill 169?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.