What history says about 'Calexit'

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  • Danny Cevallos: California's threat to leave the United States not empty
  • However unlikely, secession is an American tradition, he writes

Danny Cevallos (@CevallosLaw) is a CNN Legal Analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the US Virgin Islands. The opinions expressed in this commentary are his.

(CNN)California is now talking about secession after the Trump election victory Tuesday. The "Yes California" campaign is pushing an independence referendum in support of a constitutional exit from the United States.

While the Constitution contains provisions for accepting new states, there aren't any provisions dealing with a state exit. Advocates insist there is a procedural path. One option, according to proponents of "Calexit," is an amendment to the Constitution permitting the Golden State to leave the Union. If that amendment passes with a two-thirds majority in both the Senate and the House it would be sent to the 50 state legislatures. Thirty-eight out of 50 statehouses would have to approve it to satisfy what the Supreme Court calls the "consent of the states" requirement established in the 1869 Texas v. White decision. Another path would require a convention of the states and a similar 76% state approval.
    Danny Cevallos
    But what if California doesn't feel like doing it the amicable way? What if California doesn't want to ask permission; what if California simply wants to leave?
    Maybe you're thinking, "Didn't Texas talk about doing the same thing but no one took them seriously?"
    Or, like a lot of Americans, you're probably drawing on your high school civics lessons, shaking your head, and muttering to yourself: "C'mon. States can't secede from the Union. Wasn't this issue settled hundreds of years ago in the American Civil War?"
    Sort of. Maybe not, though.
    In a way, secession is an American tradition. As colonies, we seceded from our British union. Nine states "seceded" from a confederation of other colonies-turned-states when they ratified a new constitution and created the United States.
    Less than a hundred years later, some Southerners maintained secession was legally justified by the Declaration of Independence. Other secessionists argued that the Union was a voluntary compact entered into, the terms of which were breached by the North.
    The federal government disagreed. It disagreed by way of brute force -- war, and the bloodiest armed conflict in our nation's history.
    Only after the war did the Supreme Court make it official, and legal, holding that when the states accepted the the Constitution, they also waived their right to leave the Union.
    So while there is some judicial and military precedent forbidding states from leaving, we also don't have to look far to imagine a scenario where a state flouted federal supremacy. We can see states doing it right now, with marijuana laws. California, Massachusetts and Nevada were the latest to approve recreational use of marijuana in Tuesday's election. Meanwhile, according to the White House, "these state marijuana laws do not change the fact that using marijuana continues to be an offense under federal law."
    The states' increasing defiance is like a mini-secession, and presents a minor crisis of federalism. The Department of Justice looks completely impotent by insisting it is "committed to enforcing the Controlled Substances Act," but not actually doing anything about it in states that contradict federal authority by legalizing marijuana.
    In fairness, a state leaving the Union is much more drastic an event than legalizing bong hits and one-hitters. It's also not likely that a state would simply break up with the United States unilaterally. But what would the federal government actually do if California just declared itself free? The vote to legalize marijuana on Tuesday alone shows us California isn't exactly shaking in its flip-flops at federal authority. But secession? Would the President send in the AC-130 Spectre gunships and Bradley Fighting Vehicles — against separatist Californians?
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    It sounds insane. Our Civil War happened during a less enlightened, more brutish era, right? But civil wars still happen in the modern world. Just a few months ago, Turkish military helicopters were firing on Turkish citizens. In 2016 Colombia finally ended a civil conflict that killed an estimated 220,000 people and displaced millions. The United States is hardly immune to civil unrest in modern times, either.
    The reality is that if California really wanted to, it could probably just leave the United States. It would be an unconstitutional, illegal act. But what could Washington actually do about it? Post another announcement on the White House webpage saying it doesn't approve? No president would send in the military, would he?