For Californians it is time to initiate a process to leave the "Union" to become a separate republic

It is not a surprise that the San Francisco Chronicle this week published a piece California has two choices in these dark times: lead or secede. 

Because the U.S. Supreme Court's embracing theonomy is the immediate cause of this discussion (see California must protect itself from the rise of "A Handmaid's Tale" theonomist judiciary as more is at risk than abortion and gay marriage), this writer does not see two choices.

Rather, it is time to review and move forward on the California Republic idea long supported in these posts.

The idea is not complicated. California should be as independent as Switzerland or Chile, its people free to create a 21st Cemtiry government of policies not hindered by lingering commitments to racial, economic, or religious bigotry nor by fear of not being the alpha country in a world of sovereign countries.

The proposal is to have the California Legislature petition the Congress of the United States to permit California's independence through a negotiated agreement. This is not a proposal to unilaterally secede potentially causing a second Civil War. Nor is it a "Nationalist" movement based upon some ethnic or extended tribal differences.

Instead, the idea is based upon the assumption that if Californians through their Legislature petition Congress for permission to withdraw from the Union and Congress approves, (perhaps after a referendum on the matter) California simply returns to being the California Republic. No civil war, no terrorist movement, no riots - just an agreement between rational, democratic people.

Why, you might ask, would anyone seriously propose this? (It is a fact that a growing chorus of Texans joined the long-existing large choir in California to advocate for nationhood for their state, but that's a different discussion.)

It is not a new idea that California should return to republic status. A serious proposal gained some headway in the late 1930's but was sidelined because of WWII. At the beginning of the 21st Century, in 2002, the Sacramento Bee Columnist Peter Schrag had the following to say about the idea of California becoming a separate nation:

California secedes -- A midwinter night's dream            By Peter Schrag -- Bee Columnist - (Published December 23, 2002)     It began as no more than a gesture of protest, when a group of California Democrats, led by U.S. Sen. Barbara Boxer and House Minority Leader Nancy Pelosi, put on the November 2004 ballot the California Dignity Initiative, a measure calling on the state's congressional delegation to renegotiate California's relationship to the Union.     The precipitating event was the Interior Department decision to authorize exploratory oil drilling in Yosemite National Park: The intent of the initiative was just to draw Washington's attention to its mistreatment of the Golden State.     But by fall 2006, California, the world's sixth-largest economy, was an independent nation, Pelosi was running for president and Boxer was slated to become California's ambassador to the United Nations.     In the Bay Area, the Boxer-Pelosi measure had won by a margin of 80 percentage points to 20 percentage points. But a lot of conservatives, drawn by the campaign slogan "No More IRS," also voted for it, and so it passed overwhelmingly. By then, congressional Republicans, led by House Majority Leader Tom DeLay of Texas, had told California to go fly a kite, and the gesture began to gather irresistible momentum. "They burn the damn gas out there," DeLay said. "Why the hell shouldn't they help produce it?"     What became known as the "Rape of Yosemite," of course, was only the latest of the insults. By the time of the vote, the Public Policy Institute of California had issued a half-dozen studies showing that California was sending between $17 billion and $40 billion a year more to Washington in taxes than it was getting back in federal contracts, grants and services.     The feds weren't even willing to pay for the anti-terrorism costs of California's law enforcement agencies.     The difference in what Californians pay and what they get would be more than enough to close the state's yawning budget deficit, provide for California's national defense -- mostly through tighter protection of key California facilities and landmarks -- and still promise an overall tax cut for most Californians.     Meanwhile, the most conservative anti-tax states in the Union -- Alabama, Mississippi, Louisiana, South Carolina, Georgia, Idaho, Wyoming, Colorado, Utah and Texas -- were getting far more than their share from Washington. It was also their votes that carried the Productive Americans Act, abolishing all federal taxes on those making more than $10 million a year.     As expected, the California Dignity Initiative campaign was written off by national pundits as another crazy California stunt and by GOP spokesmen as a re-election ploy by a couple of beyond-the-fringe San Francisco Democrats.     But Pelosi had no opposition in her 2004 congressional campaign and, in what amounted to the same thing, Boxer's opponent was Shawn Steel, the former chairman of the state GOP, who had threatened recall campaigns against any Republican who voted for a tax increase to close the state's budget deficit.     Continuing a long California GOP tradition, the conservative Steel had easily beaten moderate Tom Campbell, whom he dubbed "California's Harold Stassen," in the March primary, before being obliterated himself.     The fall campaign, however, did focus Californians' attention on their grievances: the government's campaign to override the state's auto emission laws; the Justice Department's crackdown on medicinal pot smokers and their suppliers, who of course were operating legally under Proposition 215; the renewed federal oil leases off the Santa Barbara coast; and the Federal Energy Regulatory Commission's contemptuous disregard of the state's pleas for refunds from price-gouging gas and electricity suppliers.     The surprise was how willing Congress and the administration were to let California go.      In his successful re-election campaign in 2004, President Bush, quoting Lincoln, had promised to preserve the Union. But once he won, White House political affairs director Karl Rove and other Republican strategists realized that without California's votes and the money from Hollywood liberals, the GOP could dominate national affairs indefinitely. By then, of course, it was clear that the most likely candidate in 2008 would be the president's brother, Gov. Jeb Bush of Florida.     California's departure would almost certainly lead to a Supreme Court that would overturn Roe vs. Wade and the decisions restricting school prayer, and to a new reading of the Second Amendment barring any state law restricting the right to carry guns.     Congressional liberals such as Sen. Hillary Rodham Clinton and Sen. Ted Kennedy objected vehemently. They understood that California's secession would leave them even more powerless than they had been in 2002-2004.      But representatives from the Southern and Mountain states, who didn't know or didn't care how much they lived off the Golden State's wealth, were happy to be rid of tree-hugging California, where they banned automatic weapons, the schools taught homosexuality and the courts erased God from the Pledge of Allegiance.     Of course, it took a lot of negotiating -- about water rights, about what the feds claimed was California's share of the national debt, about continental security and jurisdiction over the state's remaining military bases. But once Washington realized there was no way California could be kept out of Asia-Pacific Economic Cooperation group or NAFTA, the Bear Flag nation was born.

Notice that the article mentions potential issues such as Roe v Wade, separation of church and state, gun restrictions, etc., in the context of policy changes because California would no longer be in the Union. Uh...

California is still in the Union. During this time, a Californian has been the Speaker of the House and California has a very large share of House members. A former California U.S. Senator is the Vice-President.

"Lead or secede" is not a real choice in a Union again divided as badly as it was in 1860. 

And it is a simple fact that "protests" in California against Supreme Court actions are futile for two reasons. 

• The Supreme Court with members holding lifetime terms and a majority holding theonomist views is the one Constitutional body that is not responsible to the people. 
• Supreme Court appointees can be confirmed by a vote of 51 Senators who represent the least populous of the 26 states containing only 17.6% of the U.S. population and who were put into office by less than 8% of eligible American voters; California has 12% of the U.S. population and cast 11% of the vote in the 2020 Presidential election
  
• California public policy on issues such as abortion are consistent with 21st Century views of the vast majority of Californians. 

That is why at this point in time we must take up the separation of the California Republic issue.

Why a "failed Union" - instead of a country, nation or state

On June 17, 2018, in an extensive post here Why factually these United States is a more perfect Union, not a country, nation, or state.  The following quote from that post summarizes the facts:

For purposes of clarity and simplicity, as used here from this point on the following words have specific meanings based upon pre-17th Century concepts:

• "Country" means "any considerable territory demarcated by topographical conditions."
• "Nation" means "any distinctive population with a common language, culture, and considerable history."
• "State" means "a central civil government or authority that exercises the legitimate use of force within defined geographical boundaries."
• "Union" means "a number of states or nations joined together for defined purposes to be accomplished by a separately created autonomous authority."

Using those definitions, the Cherokee Nation is a nation. Italy is a country and a state. Japan is a country, a state, and a nation. The United States of America is none of these. It is a union of states.

...We need to understand "these United States" is a union created solely for purposes of a common military defense and assuring economic success of the numerous and separate states, not regulate mundane issues such as who can have sex with whom. That's one reason why in 1792 Americans insisted on leaving establishing government churches to the real states.

You can follow the link to read the entire post. A year later in 2019 preeminent historian Jill Lapore wrote A New Americanism: Why a Nation Needs a National Story discussing the same issues and offering this observation:

    But in the 1970s, studying the nation fell out of favor in the American historical profession. Most historians started looking at either smaller or bigger things, investigating the experiences and cultures of social groups or taking the broad vantage promised by global history. This turn produced excellent scholarship. But meanwhile, who was doing the work of providing a legible past and a plausible future—a nation—to the people who lived in the United States? Charlatans, stooges, and tyrants. The endurance of nationalism proves that there’s never any shortage of blackguards willing to prop up people’s sense of themselves and their destiny with a tissue of myths and prophecies, prejudices and hatreds, or to empty out old rubbish bags full of festering resentments and calls to violence. When historians abandon the study of the nation, when scholars stop trying to write a common history for a people, nationalism doesn’t die. Instead, it eats liberalism.

Lapore's article explores the issues in depth but at the end offers this warning:

    At the close of the Cold War, some commentators concluded that the American experiment had ended in triumph, that the United States had become all the world. But the American experiment had not in fact ended. A nation founded on revolution and universal rights will forever struggle against chaos and the forces of particularism. A nation born in contradiction will forever fight over the meaning of its history. But that doesn’t mean history is meaningless, or that anyone can afford to sit out the fight.
    “The history of the United States at the present time does not seek to answer any significant questions,” [the Pulitzer Prize–winning, bowtie-wearing Stanford historian Carl] Degler told his audience some three decades ago. If American historians don’t start asking and answering those sorts of questions, other people will, he warned. They’ll echo Calhoun and Douglas and Father Coughlin. They’ll lament “American carnage.” They’ll call immigrants “animals” and other states “shithole countries.” They’ll adopt the slogan “America first.” They’ll say they can “make America great again.” They’ll call themselves “nationalists.” Their history will be a fiction. They will say that they alone love this country. They will be wrong.

We are now two full decades into the 21st Century there can be no doubt that we must acknowledge Degler's warning. But Lapore's hope that some historian will save the day is foolish. We literally no longer teach history. In fact, those Amazon Echo's mostly named Alexa offer a question "How many stars are there on the American flag?" In generations past everyone had that kind of information drilled into them by second grade. But at some point in the past three decades, in grades K-12 we replaced history with sociology, and the U.S. has always been and could never otherwise be a sociological mess.

To unify Swedish, Hungarian, and Italian immigrants Americans don't need to know more about their cultural differences. If we can't learn to simply ignore culture, ethnic, and racial differences then the United States must cease as the Union that once attempted to serve as a model for unifying the world.

After only 70 years the United States descended into what was, at that point in time, the worst war in history. As Lapore notes: "The American Civil War was a struggle over two competing ideas of the nation-state. This struggle has never ended; it has just moved around."

As explained in a History.com article: "The struggle between pro- and anti-slave forces in Kansas was a major factor in the eruption of the Civil War."

Sure there was (and is) the Deep South. But Border-State Kansas-like struggles now exists in the southwestern states, states which were once part of Mexico until, a decade before the Civil War the Union started and won a war with Mexico.

The fact is that California and Texas were part of Mexico but then both became republics before joining the United States. Perhaps that stimulates the significant popular movements advocating for the withdrawal of the two states from the Union.

How to move forward towards a new California Republic

Many argue that the Civil War settled the issue about a state having the right to secede from the Union.  Secession is  unilateral act and it does seem that the Civil War did establish clearly that no state can unilaterally withdraw itself from the United States. However....

Article IV,  Section 3,  Clause 1 of the Constitution provides as follows:  "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, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress."

"Implied powers" is an accepted legal concept.  One could reasonably argue that if Congress has the power to admit states to the Union and, further, has the power to create a state from an existing state or states with the permission of the state or states involved, then it is implied that Congress has the power to remove a state from the Union with the permission of the state involved.

Additionally, the 10th Amendment provides as follows: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."  This would seem to imply that where clarity in the Constitution is lacking, when a state is involved in something such as removal from the Union, if it has approved the idea of being out of the Union that ought to be sufficient.

In other words, if the Legislature of California were to request that the state be permitted to withdraw from the United States and Congress approves, then the separation of California from the Union would be pursuant to a bilateral agreement between the parties and legally sufficient.

Obviously, such an agreement would come about through the negotiation of an "Agreement Document" which presumably would cover the complex issues involved and would ultimately have the legal status of a treaty.  And, just to assure the democratic nature of the action, it should only be effective if approved by California voters in a referendum.  This would lay to rest the question of the existence of the implied power since the State and its people would have approved the action.

Secession is a hostile act involving insurrection and rebellion.  Separation could be accomplished in a process of mutual respect, understanding, and agreement.

So, the steps would seem fairly straightforward:

1. The Legislature would initially adopt a resolution requesting that Congress consider removing California from the Union.
2. A resolution then would be adopted by Congress providing for a process for developing an Agreement for the Separation of California from the Union.
3. Upon completion of the proposed agreement, Congress would approve the Agreement and forward it to the Legislature.
4. The Legislature would submit to the voters an amendment to the State Constitution approving the Agreement and calling for a constitutional convention to develop a new California Constitution.
5. If the voters approve the amendment, then California would become a separate nation pursuant to the agreement and would establish its own national constitution.

It seem as though such a legal process is fairly straightforward, albeit difficult to get accomplished. But it would be a process preferable to a four-year civil war.