‘New California’ Could Become the Next West Virginia

University of Tennessee Law School professor Glenn Harlan Reynolds looks at the precedents and concludes it could happen..

Secession was banned for all time when the Northern states defeated the Southern Confederacy in the Civil War, right? Well, no, it wasn’t.

In fact, University of Tennessee law professor Glenn Harlan Reynolds sees the following scenario as a possibility not out of the question in the near future:

“In the summer of 2021, following the California financial crisis and CalPers pension collapse, public employee-supporting Democrats from the California General Assembly absented themselves from the state, preventing a quorum so that legislation slahing pension payouts could not be passed.

“That absence stretched from days into weeks, as the state government largely shut down for lack of funding. Seizing on this moment, 34 counties from the eastern and rural parts of what was then California organized themselves and sent representatives to Fresno, where those representatives declared themselves the new, official California General Assembly and designated individuals of their choice as the new, official governor and attorney general.

“The new legislature and officials were quickly recognized by President Donald Trump, who, citing his authority under the Insurrection Act and Article IV section 4 of the United States Constitution, deemed them the official government of the state, and sent federal troops from the 101st Airborne Division to Fresno to ensure that what he called ‘leftovers’ of the ‘old, failed state government’ were unable to ’cause trouble.’ President Trump’s recognition was echoed in a joint resolution of the Republican-controlled Congress, which perhaps anticipated the addition of two new Republican senators.”

Far-fetched? Fanciful? Not at all, Reynolds argues in “Splitsylvania: State Secession and What To do About It,” available in abstract form and downloadable at SSRN.

In addition to being a law professor, Reynolds is the founder and long-time proprietor of Instapundit.com, one of the first political blogs to achieve and maintain national influence from the early days of blogging.

“Intrastate secession isn’t exactly new in the United States: West Virginia was once part of Virginia, for example, and Tennessee was once part of North Carolina, though that evolution was less fraught,” Reynolds writes.

“But in recent years, we’ve seen a number of states facing calls to split, from inhabitants of regions who feel effectively unrepresented. In New York State, for example, there have been repeated calls to split upstate New York from the New York City region. One such proposal involves letting the NYC area keep the name “New York,” while the new upstate state would be named “New Amsterdam.”

There have been other movements as well, some larger and noisier than others, to split Chicago off from the rest of Illinois, break Texas into six separate new states, and to create two new states out of the eastern sections of Washington and Oregon.

California, though, remains the place where a determined citizen movement may be most likely to pursue a successful intra-state secession, a la West Virginia’s withdrawal from the Commonwealth of Virginia during the Civil War, according to Reynolds.

“Perhaps better publicized is Silicon Valley entrepreneur Tim Draper’s plan to split California into six states, one of which would be, essentially, Silicon Valley’s own preserve. Though Draper’s plan did not make the 2016 ballot, it served as a useful outlet for complaints about unrepresented parts of the state,” Reynolds writes.

In order to be successful, though, Reynolds suggests that it must “also please the residents of inland and northern California, who feel that California state government — with its heavy interests in the Los Angeles and San Francisco Bay areas — views them with indifference or even hostility.”

Reynolds points to a second, more moderate effort to split California into two states by sundering the coastal areas into one jurisdiction and the rest of the state into the other, with the latter to be known as “New California.”

THIS ESSAY IS A HELPFUL REMINDER THAT SECESSION MOVEMENTS ARE NOT OUT OF THE QUESTION IN A NATION AS POLARIZED AS AMERICA IN 2018.

He quotes CBS News’ reporting that “unlike other separation movements in the past, the state of New California wants to do things by the book, citing Article 4, Section 3 of the U.S. Constitution and working with the state legislature to get it done, similar to the way West Virginia was formed … The group is organized with committees and a council of county representatives, but say it will take 10 to 18 months before they are ready to fully engage with the state legislature.”

Immediately thereafter, the now duly-recognized California legislature in Fresno petitioned Congress to be allowed to split California into two states. A narrow coastal strip extending from Los Angeles County in the south to Sonoma County in the North would remain the state of California; the rest would become the new state of New California. Congress, at the President’s recommendation, immediately approved this change, and the state of New California was born.

(Acquiescence to this scheme, the prior government of California was told, was a prerequisite to any federal bailout, but judicial * Beauchamp Brogan Distinguished Professor of Law, University of Tennessee. J.D. Yale Law School; B.A. University of Tennessee. Thanks to Daniel Ames for excellent research on this piece. review seemed unlikely anyway, as the Supreme Court had already held federal recognition of state governments to be a political question as far back as Luther v. Borden). But could they do this? Was this change – though literally within the wording of the Constitution – legitimate? Well, there is the precedent of West Virginia to consider.

This “future history” – borrowing heavily in places from Vasan Kesavan & Michael Stokes Paulsen’s Is West Virginia Unconstitutional?1 – is farfetched.2 But the larger issue of intra-state secession is a growing one, and it would be helpful to address it, and perhaps to relieve the pressure, before things reach a more difficult pass. In fact, intrastate secession is the true secession fever: Not the perennial postelection calls of losing parties to secede from a nation controlled by the opposition, but a growing movement for secession from states, with the parts of states (sometimes geographically very large parts of states) wanting to separate from the population-dense urban areas that essentially control state decisionmaking.

Feeling ignored, put-upon, and mistreated, secessionists want to take their fate into their own hands. These movements are common, but not likely to succeed on their own, as intrastate secession is, though not entirely unknown (see, e.g., West Virginia) very difficult to pull off. But these movements do indicate a widespread sense of dissatisfaction among (mostly rural) populations who feel that they are governed by people in distant urban centers who know little, and care less, about their way of life. Such sentiments, which in a way resemble those regarding Britain in the lead-up to the American Revolution,3 have probably worsened since the Supreme Court’s decisions in the line of cases beginning with Baker v. Carr4 weakened rural areas’ political position in favor of urban areas. This problem was, to a degree, foreseen by contemporary critics of those decisions.5

Reynolds is not encouraging any of the secession movements, and he describes the numerous legislative, regulatory and political obstacles that crowd the road ahead for all of them. But his essay is a helpful reminder that it’s not out of the question in a nation as polarized as America in 2018.

Senior editor Mark Tapscott can be reached at mark.tapscott@lifezette.com. Follow him on Twitter.​