WILL THE UNITED STATES SURVIVE UNTIL 2024?

Peter Radan (21 September 2020)

In 1970, Andrei Amalrik, a Russian dissident, wrote a book titled, Will the Soviet Union Survive Until 1984? In it Amalrik predicted that, in the wake of significant social and ethnic tensions within the Soviet empire and its disastrous border conflict with China in 1969, the Soviet Union would disintegrate.

At the time Amalrik's prognostications were generally dismissed. However, Amalrik was eventually proven to be right when, in the early 1990s, the Soviet Union fell apart.

Since Donald Trump's election to the presidency of the United States in 2016 there has been considerable speculation, not only in the media, but also from scholars,[1] as to whether the United States could follow down the path of its former Cold War rival. This speculation has centred on the question of whether states such as Texas or California would or could secede from the US. Indeed, prior to Trump's election there was considerable talk within Texas's Republican Party as to whether Texas would or could secede in the event that Hilary Clinton won the election, as many expected she would.[2] Trump's victory ended that speculation but inspired a secessionist movement in California, the so-called Calexit movement.[3]

Irrespective of who wins this year's presidential election, secessionist talk will continue. If Biden wins, that is likely to re-ignite secessionist sentiment in Texas. If Trump wins, the Calexit movement will push on.

Will the United States survive until 2024?

Most will dismiss the possibility of a secession from the US, much as most dismissed Amalrik's 1970 prediction about the Soviet Union. And, while one can reasonably argue that there is very little, if any, chance that any state could secede from the US, such a possibility cannot be ruled out. As Richard Keitner has catalogued in his recent book, Break It Up, secession has been a constant theme in America's history.[4] And, of course, the Civil War of 1861-1865, was an attempt by eleven slave states of the South to secede. It failed, but at a cost of, according to the most recent study, of at least 750,000 lives.[5]

Nonetheless, it must be kept in mind that there is reasonable support for secession in states such as California. Following Trump's victory in 2016, polling at various times in California has shown support for secession to range from 14% to 32%.[6] This level of support has prompted Calexit leaders to push for a referendum on secession. And, progress towards such a referendum has taken place.

On 10 September this year the Californian Secretary of State approved the first step towards such a referendum, by announcing that, if 623,212 registered voters in California sign a petition for a secession referendum by 8 March 2021, such a referendum will be put to California's voters. If the petition drive is successful and at least 50% of registered voters vote in the referendum, and a "Yes" vote of 55% is achieved, a commission will be set up to evaluate the viability of California seceding.[7] If all of this were achieved the question would then arise as to whether California could legally secede from the US.

It is almost universally believed, at least amongst scholars, that secession from the US is legally impossible. The legal scholar Cass Sunstein summarises this viewpoint with his assertion that "no serious scholar ... argues that a right of secession exists under American constitutional law".[8]

Salmon P Chase

Sunstein bases this claim on the decision of the US Supreme Court in the case of Texas v White, decided in the wake of the Civil War. In that case, Chief Justice Salmon P Chase decreed that the US was "an indestructible Union, composed of indestructible States".[9]

However, what Sunstein ignores is that Chase goes on to say that secession can occur with the "consent of the states".[10] Thus, Texas v White stands only for the proposition that the unilateral secession of a state is illegal. What Chase meant by secession with the "consent of the States" he does not make clear, but it is likely that it requires a state's secession to be approved by an amendment to the US Constitution.

In 1970, Amalrik suggested that disintegration of the Soviet Union could occur peacefully, which is what, in fact, happened. In the US context, that would require 38 states ratifying a constitutional amendment saying "goodbye" to California, which is likely impossible to achieve.

However, Amalrik also proffered a second way in which disintegration could occur. In the Calexit context, that would require anarchy and violence in the wake of an extremist being in power in Washington.

Footnotes

[1] F H Buckley, American Secession, Encounter Books, 2020; Richard Keitner, Break It Up: Secession, Division, and the Secret History of America's Imperfect Union, Little, Brown & Co, 2020. [2] Keitner, note 1 above, 363. [3] Buckley, note 1 above, 19. [4] Keitner, note 1 above. [5] J David Hacker, 'A Census-Based Count of the Civil War Dead' (2011) 57 Civil War History 307 at 311. [6] <https://en.wikipedia.org/wiki/Yes_California>. [7] <https://www.sos.ca.gov/administration/news-releases-and-advisories/2020-news-releases-and-advisories/ap20081-proposed-initiative-enters-circulation>. [8] Cass R Sunstein, ‘Constitutionalism and Secession’ (1991) 58 University of Chicago Law Review 633 at 633. [9] Texas v White, 74 US 700, 725 (1869). [10] Ibid, 726.