11 Nov Would Secession by California and Oregon Be Legal?
Following Donald Trump’s stunning election victory, ballot measures are already being proposed in California and Oregon to secede from the United States. Ordinarily, one can just chuckle at these measures as the actions of a radical fringe, but it would be hard to overestimate the depth of anger and opposition to a President Trump in states like California, where he lost by probably 20 percentage points. If such a measure got on the ballot, we might see a serious campaign akin to Scotland’s 2014 referendum on staying in the United Kingdom.
But it seems settled under US constitutional law that unilateral secession from the United States is unconstitutional. In the 1869 case Texas v. White, the U.S. Supreme Court ruled:
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.
Some might argue, however, that a unilateral secession by California is authorized by the international law right of self-determination. This is a much more difficult point to analyze, but I think that neither California nor Oregon would qualify to exercise this murky international law right, at least with respect to seceding. The Canada Supreme Court’s decision in the Quebec case is probably most on point here.
A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its own internal arrangements, is entitled to the protection under international law of its territorial integrity.
In other words, international law guarantees to every state its “territorial integrity” and it can’t be overridden by “self determination” unless serious freedoms or discrimination against residents in the seceding region are being infringed. Moreover, this right has generally only been exercised by states under colonization or foreign occupation. The right might also exist if the state is facing the threat of egregious human rights violations (e.g. Kosovo), but the right in even that circumstance is controversial globally.
But I will admit I am not an expert on the international law of self-determination. If anyone has a good argument for why California or Oregon qualifies to exercise this right under international law, please feel free to share in the comments.
So I am going to go out on a limb here to say that a referendum to secede California or Oregon from the United States is both unconstitutional and unauthorized by international law. Still, just getting such a measure on the ballot would be significant because they would force the U.S. government to take a position on the legality of such measures. This could affect US government positions on foreign self-determination movements in places like Hong Kong, for instance.
We live in interesting (and dangerous) times.