Admit it; after the election, you saw this little graphic about the “United States of Canada” and “Jesusland” and chuckled. In a post-election haze, you may have even wondered about the feasibility of implementing just such an idea.
Though I know of no one who has talked about Blue-state sucession as a serious idea worth pursuing, Michael Dorf, a law professor at Columbia, recently offered a valuable analysis of the legality of secession. His conclusion — if Blue states really wanted to go, the Red states would have to sign off on the idea.
[I]t is settled law that the Constitution does not permit unilateral secession: A state or group of states cannot simply leave the Union over the objections of the national government. However, the arguments that led to this settled understanding are hardly unassailable, and the Constitution is probably best read as permitting the mutually agreed upon departure of one or more states.
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The U.S. Constitution does not expressly recognize or deny a right of secession. Accordingly, the argument for a right of unilateral secession begins (and pretty much ends) with a claim about the very nature of the Constitution.
That document, by the terms of its Article VII, only obtained legal force through the ratification by nine states, and then only in the states so ratifying it. Because the Constitution derived its initial force from the voluntary act of consent by the sovereign states, secessionists argued, a state could voluntarily and unilaterally withdraw its consent from the Union.
In this view, the Constitution is a kind of multilateral treaty, which derives its legal effect from the consent of the sovereign parties to it. Just as sovereign nations can withdraw from a treaty, so too can the sovereign states withdraw from the Union.
There’s a lot more to this, including the possible need for a constitutional amendment. Ultimately, however, if Blue staters really wanted to break off, they’d effectively have to ask “Jesusland” for permission. For a variety of reasons, not the least of which is the fact that Red states get more money from the federal government than they pay, I don’t imagine they’d go for it.