"The denial of the right to secede from a voluntary union is itself a primary justification for secession"
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Application of Secession Theories to the Modern United States
It is impractical an imprudent to assume that everyone that adheres to the concept of secession as a legitimate recourse will also agree on the proper application and use of this right. Liberals, conservatives, communist, socialist and monarchist have all applied various theories of secession to their causes over the course of history. Secession knows no political boundaries; it is neither conservative or liberal.
Furthermore, the various groups that aspire to use secession on the North American continent do so from different starting points. For instance a state that was an original colony and thus a free and independent nation-state from 1776 until 1789 has a very different set of sovereignty issues than Hawaii. Some theories are applicable to one group and not applicable to the other.
This section attempts to apply workable theories of secession to various sections of the United States and thus to those groups working for autonomy and/or independence. The application of the theories discussed are by no means definitive. We have intentionally focused only on states with active secession movements. This discussion is not intended to ignore libertarian theories of primary right which would state any group of people my exercise the right of secession by the popular will.
The Original Thirteen Colonies/States
As independent nation-states from 1776 until 1789-92 each of the original 13 states retains a special claim to the State-Federal Contract Theory. After all it was these states that gave birth to the federal government.
Furthermore the Treaty of Paris (1783) in Article I states:
His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states, that he treats with them as such, and for himself, his heirs, and successors, relinquishes all claims to the government, propriety, and territorial rights of the same and every part thereof.
applicable to secession movements in New Hampshire and South Carolina and Vermont as the 14th State and part of the ratification process of the Constitution and a free state as of 1777..
Hawaii
US Public Law 103-150 sums up the case of Hawaiians and Hawaii best:
the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum.
Read more about Hawaii's claim to sovereignty here.
Hawaii and Hawaiians have a solid right to secession utilizing the: Nationalist Variant of Primary Right and Partial Right Variant of Remedial Right theories.
Clearly Birch's first point applies: the seceding region was included in the state by force and its people have displayed a continuing refusal to give full consent to the union.
Note: Hawaiians within the Hawaiian Independence movement do not use the term secession for what they desire. They contend that Hawaii was never legally added to the Union and therefore secession is not necessary. This is a viable argument with the exception of the fact that a de facto Hawaiian government does exist as a state and that state is part of the union. De facto governments can and do over time gain legitimacy, regardless of the nature of their birth. The de facto Hawaiian government will not simply admit it illegitimacy and concede power. Hawaiians seeking independence are then left with two choices, 1) revolt and over throw the de facto state government or 2) utilize the philosophy of secession to take the de facto government out of the Union and then reestablish a legitimate de jure sovereign government. The second option is the only bloodless choice.
Alaska
Alaska shares much in common with Hawaii in the manner in which statehood was ratified. In Alaska, as in Hawaii non-resident military members were allowed to vote. The votes for statehood numbered only 40,000. Forty-one thousand military members and their families were in Alaska in 1958 for the vote. A complete listing of the particulars can be found here.
Both the Nationalist Variant of Primary Right and Partial Right Variant of Remedial Right theories apply to Alaska.
Texas
Texas enjoyed independent nation status from 1836 until 1846. The Republic of Texas disputes the legality of annexation in 1846 and claims the Texas government existed in de facto status from that date. Texas again established its status as an independent nation in 1861 by seceding from the federal union.
If one accepts the claims of the Texas Republic the Partial Right Variant of Remedial Right theory is applicable to Texas (justification 1)
If one does not accept the claim that annexation was illegal Texas still enjoys the right of secession under the State-Federal Contract theory. Texas as an independent nation, freely joined the contract as a party, delegating only specified rights to the federal government (those outlined in the first ten articles of the Constitution). This contract is not perpetual and requires that each party uphold their duties and responsibilities for the contract to remain valid.
Finally, as a member of the former Confederacy and a state subjected to Reconstruction Texas qualifies to utilizes the justifications for secession found under that special category.
The admission of California into the Union and the turmoil that proceeded that event from 1846-1850 leaves the question of "the will of the People" in doubt in terms of consent. It could rightly be argued that John C. Fremont's ( an agent of the Federal government in his role in California) behavior during this period is nothing less than calculated to evoke turmoil and set the stage for a conflict that would invite US troops. This murky history makes is difficult to establish the legitimacy or illegitimacy of California's entry into the Federal Union in 1850. However, it must be said that regardless of the circumstances the majority of Californians accepted the status of statehood without dissent, thus negating certain potential justifications for secession. Neal Harlow has written probably the best account of what he describes as a US invasion of California in "California Conquered"
With or without sufficient historical justification for the application of other theories California is probably best suited politically to apply the Liberal Primary Right theory of secession. As the world's fifth largest economy their right to establish their own nation is inarguable.
The former Confederate states have an interesting claim to secession. Not only were they each separately independent from the date of their secession in 1861 until the formation of the Confederate States of America a convincing argument can be made that the act of reconstruction created an illegitimate compact, one based upon force and coercion.
Reconstruction was a punishing event, it was military occupation and military rule. During the later periods when the federal military installed puppet civilian leadership there remained a lack of consent by the ruled. Southern states were forced to rejoin the Union to end Reconstruction. This was not consent.
The very fact that these states were forced to reenter the Union in the first place gives validity to the notion that a state can leave the Union. Reconstruction proves that secession is a legal and legitimate concept.
The Southern states were presented with a Sophie's choice, remain occupied territory under military rule or consent to reentry into the Union under conditions dictated by the federal government. Many Southerners were denied the franchise during the deliberations surrounding their state's joining the Union again. The option of ending military rule and rejoining or remaining occupied territory was in the end an obvious choice for all the former Confederate states. However, a contract executed under coercion cannot be binding.
Former Confederate States can apply the following theories:
Remedial Right Only - to correct the illegality of forced reentry into the Union
Partial Right Variant of Remedial Right - justification 1, forced association
Finally, portions of the South still retain a distinct culture (Scots-Irish in origin) and religion (Bible-belt) that differs greatly from most of the US. These sections could use the Nationalist Variant of Primary Right theory as a justification for secession.
applicable to secession movements in Texas and South Carolina
North American * Secession and Independence Movements
*Hawaii and Puerto Rico are obviously not part of North America, no offense intended
Active Secession Movements Around the World
One Nation Indivisible? A Study of Secession and the Constitution