Homage to California? (More on What Calexit Teaches Us About Secessionist Movements)

Law professors should not be political prognosticators.  That’s probably something on which we can all agree.  Nonetheless, here’s my prediction: despite the current buzz (see also, this), California will not secede from the United States. Sorry, Silicon Valley Hamiltons.  However, the “Yes California” movement, spurred on by a Trump presidential victory can be instructive on the law,  psychology, and incentives behind more robust secessionist movements around the world.

As Julian mentioned in a post earlier today, the “#Calexit”  movement is seeking a referendum on secession in 2019.  The  group’s website states:

“As the sixth largest economy in the world, California is more economically powerful than France and has a population larger than Poland. Point by point, California compares and competes with countries, not just the 49 other states.”

In our view, the United States of America represents so many things that conflict with Californian values, and our continued statehood means California will continue subsidizing the other states to our own detriment, and to the detriment of our children.

Although charity is part of our culture, when you consider that California’s infrastructure is falling apart, our public schools are ranked among the worst in the entire country, we have the highest number of homeless persons living without shelter and other basic necessities, poverty rates remain high, income inequality continues to expand, and we must often borrow money from the future to provide services for today, now is not the time for charity.

This statement, and much about the movement, is like a study in secessionist politics, albeit with a sun-kissed white wine and Jacuzzis twist.  OK, that Jacuzzi quip may be snarky, but I wanted to attach an image to this idea: the yearning for Calexit, such as it is, is an example of a wish for a “secession of the successful” (to use a term political geographers John O’Loughlin, Gerard Toal, and Rebecca Chamberlain-Creanga used to describe the attempted  Transnistrian secession from Moldova, actually). These types of separatist movements, in which the separating group wants to stop paying rents to the central government and/or keep resources within their own territory for themselves, are generally called “tax exits.”

The Transnistrian, Slovenian, and Croatian separations or or attempted secessions all had elements of tax exits. (See P. Collier & A. Hoeffler, ‘The Political Economy of Secession’, in H. Hannum & E. F. Babbitt (eds), Negotiating Self Determination (2006), 46 (concerning Slovenia and Croatia)). This is not even a solely a phenomenon of nation-building.  In the U.S., we have even had new towns made up of wealthy neighborhoods that separated themselves from existing municipalities over tax allocations.

Perhaps the best analogy, though, is Catalonia.  Relatively wealthy,  a large export economy, and the hub of creative industries in Spain, Catalonia even looks like parts of California (or vice versa). A common complaint is that wealth generated in Catalonia is redistributed by the national government to regions that are economically weak.

Now, here’s what the Calexiters argue:

Since 1987, California has been subsidizing the other states at a loss of tens and sometimes hundreds of billions of dollars in a single fiscal year. As a result, we are often forced to raise taxes and charge fees in California, and borrow money from the future to make up the difference. This is partly why California presently has some of the highest taxes in the country, and so much debt. Independence means that all of our taxes will be kept in California based on the priorities we set, and we will be able to do so while repaying our debts and phasing out the current state income tax.

You can’t state more clearly that a tax exit is a significant motivating factor for Calexit.

So, if a majority of Californians say “yes to California,” do they have a right to become their own country under domestic law or international law?

Julian answered the domestic law question in his post.

As for international law, the right to self-determination is described in Article 1 of both the International Covenant of Civil and Political Rights Covenant and the International Covenant on Economic, Social and Cultural Rights:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

However, while Catalans, for example, can make a credible argument that they are a distinct people with their own language and culture and a heritage as a significant nation in European history, Calexiters are mainly upset about the recent election and would like to hang on to more tax revenues.  Those are disputes over policy, but not claims of an independent national identity.

Regardless, since the birth of the United Nations, diplomats and jurists emphasized that a right of self-determination does not provide a remedy of secession outside of the context of decolonization. A broad right to secession would have clashed with a cornerstone of the UN, the territorial integrity of states. Outside of the context of decolonization, the right of self-determination for communities that are within already existing states is understood as a right to “internal” self-determination: the pursuit of political, cultural, linguistic, and other rights within the existing state (in this case, the U.S.).

However, secession is not in and of itself illegal under international law (although it may be linked to an act that is breach in international law, such as a military intervention by another state: think Russia invading Georgia to assist South Ossetia.)

While secession may be neither a right nor illegal under international law, secessionist acts are usually illegal under domestic laws.  Taken together, whether or not a secession is successful begins as a domestic political struggle, framed by the legal system of the pre-existing country and sometimes implicating international law due to intervention by other countries (or if the secession becomes a non-international armed conflict, but that’s another story).

All this sounds quite exotic in the context of some tech industry founders applying their credo of “disruption” to national politics. (I’m just waiting for the first Calexiter to say he or she aims to “break shit.”)  The short answer is that there is no right for California to secede under either domestic or international law.

However, the rhetoric of self-determination is enticing to would-be nation-builders and Calexiters make many of the same mistakes as other tax exit secessionists:

First, they assume there is a clear path to secession, when that is rarely the case.  Talk to the Catalans about this.  They have mustered hundreds of thousands of people in the streets in periodic protests over years on end.  But, absent the consent of Madrid, there is no obvious road to separation via the Spanish Constitution.  Spain’s Constitutional Court has thrown a wet blanket over their aspirations. Expect the same in California.  No amount of referenda will suddenly give California a right to secede under either U.S. constitutional law or under international law.

Even if there was a path to legal separation under the U.S. Constitution, don’t be so sure that you would get the vote result you expect.  Just ask the Scottish Nationalists. Granted, with Brexit there is now a greater chance that Scotland would choose independence if there is a second vote.

Second, secessionists tend to assume that secession solves more problems than it creates (and they often ignore the problems that would arise with separation). This is because secessionist often undervalue the advantages of staying within the pre-existing country. Why is California such a robust economy? In part because it has free trade with an even larger robust economy: the rest of the U.S.  Secessionist entities tend not to have very good trade relations with the countries they exited. Just ask South Ossetia, Northern Cyprus, Kosovo, or any of a host of other entities. By analogy, look at the concern over British trade with the rest of Europe once Brexit occurs.

Moreover, California’s economy is dynamic in part because it has the advantage of a stable currency used the world over: the U.S. dollar. While a strong dollar can sometimes tamp down exports, the advantages of stability and ubiquity are much greater. Have fun with your new currency’s exchange rates!

Calexiters also complain that being part of the U.S. makes them less secure:

The U.S. Government spends more on its military than the next several countries combined. Not only is California forced to subsidize this massive military budget with our taxes, but Californians are sent off to fight in wars that often do more to perpetuate terrorism than to abate it. The only reason terrorists might want to attack us is because we are part of the United States and are guilty by association. Not being a part of that country will make California a less likely target of retaliation by its enemies.

Besides the logic that “[t]he only reason terrorists might want to attack us is because we are part of the United States,” which somehow misses  terrorism against other countries around the world and assumes that the only reason for terrorism is as a reaction to U.S. military policy, this also begs the question of what would a Republic of California do for its own peace and security? Assume it faces no threats? Undertake massive public investments, requiring significant taxation, to build a new army?

Third, secessionist  rhetoric often galvanizes local support through an “us and them” narrative that leads to increased tensions and conflicts. tearing yourself off a country is no easy feat. To get people to want to do that, you usually have to convince them that they no longer belong in that political community. The politics of separation emphasizes difference to spur disunion. There is already too much such argument in the era of Trump.  It is not at all clear that adding more as a counterbalance to that which already exists would make things better, as opposed to worse.

While Calexit seems more like a pipe-dream than political reality, it does nonetheless exemplify some of the characteristics common to calls for tax exits or attempted “secessions of the successful.”

So, I say to Silicon Valley’s Hamilton wannabes: Enough with #Calexit, already.  Just like when a bunch of you wanted to play pirate, I mean become “seasteaders”, you have misanalyzed the situation, missing the Constitutional, international legal, economic, and political realities of Calexit. Haven’t we learned by now that having a hashtag is not the same as having a coherent policy?  (And, in this case, taking control of a country will require more than garnering votes.)

Instead of fantasizing about running away, roll up your sleeves and get back to work building the type of tolerant big-hearted nation you say you want, right here in the big messy country that already exists.  Don’t quit. Especially now.  We need you. Stay in the game.