PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

Monday, October 14, 2013

State Switching as Secession

Over at Volokh, Eugene Kontorovich offers some legal advice to the wave of secession movements that have recently popped up around the country:

Some spirit of secession has spread across the land, with various areas in Maryland, Colorado, Texas, California and elsewhere discussing seceding from their states, because of political alienation arising from significant differences in values and preferences.

These secessionists have an advantage over those seeking outright separation from the Union – and a big disadvantage. On one hand, they don’t have to deal with the Confederacy/slavery baggage that tends to confound discussions of secession in the U.S. On the other hand, the Constitution, Art. IV, sec. 3 clearly forbids the creating a new state in the territory of an existing one without the latter’s consent, and the consent of Congress. That is a high bar, practically insurmountable.

But there may be an easier way for those who seek to secede from their state – instead of creating a new “51st” state, secede to join an existing state. The Constitution’s requirement of home-state and congressional consent only clearly applies to the creation of a “new state."

Steve Clowney

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