How to Secede from a State Without Really Trying

by Jacob Gershman

Secession fever is spreading. In red and blue pockets of America, disgruntled residents are organizing efforts to split up with their home states, from liberals in southern Arizona to conservatives in rural Colorado and Western Maryland.

The biggest obstacle for these movements would seem to be the Constitution, which requires secessionists to get the blessing of their state Legislature and then Congress.

There might be an easier way, says Eugene Kontorovich, a law professor at Northwestern University, in a provocative post at Volokh Conspiracy. Rather than forming a new “51st” state, how about seceding 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,’ ” Mr. Kontorovich writes.

Here’s what Article IV, Section 3 of the Constitution says:

New states may be admitted by the Congress into this union; but no new state shall be formed or erected within the jurisdiction of any other state, nor any state be formed by the junction of two or more states, without the consent of the legislatures of the states concerned, as well as of the Congress.

Mr. Kontorovich concedes that it’s not totally clear what it means to “form” a new state. But he thinks one can make a more compelling case that merely shrinking or enlarging boundaries isn’t the same thing as creating a new state.

“If western Maryland secedes to join West Virginia, would one say West Virginia has been ‘formed’ by the merger of West Virginia and parts of Maryland? I would say ‘West Virginia’ has already been formed,” he writes.

He says the historical context also jibes with his reading of it. The Founders, he says, inserted that provision to deal with carving up the western territories and the incorporation of the Republic of Vermont.

Mr. Kontorovich is clear that he’s not advocating for secession, saying he doesn’t take all this secessionist talk too seriously. And it’s not exactly clear how one would go about the process of interstate secession. “The state secessionists’ best bet would be to have some local referendum or Convention that would overwhelmingly favor joining another state,” he writes.

But here’s the kicker: While it may be more convenient, there’s no constitutional requirement that states be contiguous. That means, he writes, “potential secessionists could go ‘on the market’ to find the best potential state to unify with.”

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