Does the Constitution Permit Secession by Mutual Agreement?
Texas v. White is settled law. It stands for the proposition that the Constitution prohibits unilateral secession. By implication, Texas v. White also prohibits expulsion of a state that wishes to remain part of the Union. (Expulsion, satirically advanced recently in a column by Mike Thompson, also would seem to run afoul of Article V of the Constitution, which provides “that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”) What does Texas v. White have to say about secession by mutual agreement? If the Union is truly indestructible, then states cannot secede even if the national government is willing to let them go. Can that be right? Are the states trapped in a permanent marriage that even an amicable divorce cannot end? There is reason to think that the Supreme Court’s “indestructible” formulation in Texas v. White was hyperbole. After all, Article IV makes clear that the states are not indestructible. Congress can, with the approval of the sta
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