Why all Californians should take independence seriously

The idea of California as an independent country has been around for a long time, but it’s gotten a lot more attention since the November 2016 election (“Calexit”). Some Californians love the idea, and some, frankly hate it.

My goal in this article is not to convince people to be for or against independence, but rather that we should approach the idea with the same kind of serious thought we would give a ballot proposition or any other policy proposal.

Independence is a much more likely scenario than most people think, and the kind of structural changes our state would need to make to operate as an independent country look an awful lot like the kind of changes we’d need to make a more robust state that can better stand up to the federal government.

A real thing we can actually do

A pretty common argument is that there’s just no way California could leave the Union without an amendment to the U.S. Constitution. This would be very, very hard, as it requires the approval of three-fourths of state legislatures, and, as a result, almost never happens. In fact, the last constitutional amendment of any consequence (the 26th amendment, which lowed the voting age to 18), passed before I was born.

Why waste time discussing the details of a near-impossibility? This sounds doubly good if you hate the idea of leaving the Union in the first place.

The problem with this argument is that it’s factually incorrect. What we need from the U.S. side of things is a regular old act of Congress, or, at most, a treaty. For a couple of reasons:

First, independence is a purely political question. What I mean by that is if Congress ever passed a law granting California independence, and California went on to operate as an independent country (joining the U.N., signing treaties, etc.), it wouldn’t matter if someone later made a convincing legal case in U.S. courts that Congress couldn’t, Constitutionally speaking, do that. It would be like trying to make Cuba part of the U.S. again by proving that the Platt Amendment was unconstitutional. Okay. So?

Second, if you insist on doing everything strictly by the book, the U.S. can still make California an independent country. The process is a bit complex (see Constitutional Loopholes for Independence), but the gist is, you create a brand new country, operating on a copy of the California constitution, out of California’s territory and public property. The State of California never actually leaves the union (so Texas v. White doesn’t apply), but the end result for Californians is the same.

I don’t mean to say that California gaining independence would be easy. Just that, in terms of votes, it’s much, much easier than abolishing the electoral college or getting fairer representation for California in the U.S. Senate.

A broad base of political support

When polled, about a 23% of Californians answered yes to the question:

Would you support? Or would you oppose? … the idea of California seceding from the United States?

Another 20% said “Not Sure”.

To me, this is a pretty surprising result. Honestly, if I were answering this question, I probably wouldn’t respond “Yes,” because to me it sounds like unilateral secession, which inevitably leads to war.

Lest you think this is just post-Trump venting (the poll above is almost entirely about the presidential candidates, after all), you should note that in 2014, 22% of people in the western U.S. answered “Yes” to a somewhat better-phrased question:

Do you support or oppose the idea of your state peacefully withdrawing from the United States of America and the federal government?

This isn’t to say that independence currently has majority support, but that if you add up all the Californians that are open to the idea, it’s pretty close to the level of support for abolishing the death penalty in California. Even the 22–23% percentage of of people who said “Yes” is pretty close to the the 26% of California voters who registered Republican.

I’d also bet than only about 1% of the respondents have actually thought it through from a policy perspective (what it might mean for schools, housing, water, taxes, etc.); if they did, their opinions could change pretty far in either direction. Just wanted to point out that it’s within the realm of the politically possible.

It’s also worth thinking about how to integrate people who support independence into the (non-secessionist) resistance that California’s government is currently gearing up for against the next presidential administration.

Ain’t no secession like negotiated secession

Neither of the polling questions above is really the right one. The more realistic question is something more like:

Do you favor the State of California opening negotiations with the United States to establish the terms of independence?

What?

Well, fighting a war of independence with the United States is completely out of the question, right? (Yes? Please say yes. I have a family.) So what we’re left with is peaceful secession. And peaceful secessions have rules. Thirteen of them, in fact, if you believe political scientist Robert A. Young, who wrote the paper “How do Peaceful Secessions Happen?

Working from this paper, what independence for California would boil down to is negotiation. A small group of government officials representing a broad-based coalition (say, the governor and the majority and minority leaders of each house of the legislature) would hammer out the basic terms of independence with their counterparts in the federal government, and then it would go back to Congress for a vote, and California for a constitutional revision establishing independence.

Now the argument for impossibility is “the U.S. would never in a million years negotiate.” Well, maybe. California is America’s most disliked state, and, on the extrinsic motivation side of things, Congress has an awfully hard time averting government shutdowns, and 1/8 of the seats in the House are California’s. Definitely a weaker argument than needing a constitutional amendment, anyhow.

Really, we should be thinking over what the major areas of contention might be (water from the Colorado? military bases? California’s share of the national debt?). That’s what I mean about thinking about independence like any other policy.

And then, if you want independence, think about what kind of deal you’d be willing to accept. The U.S. can’t kick California out any more than California can secede (well, not without that near-impossible Constitutional amendment, anyhow). This is actually a pretty sweet position to be in; compare to Singapore, which got kicked out of Malaysia, or Britain, which once it chooses to “Brexit” by invoking Article 50 of the Lisbon treaty, is basically out on its ass in two years unless the E.U. decides to give them a better deal.

And no deal would actually take effect without a revision to the California Constitution, which means it’d need a broad base of support (2/3 of each house of the state legislature) and you’d be voting on it. If we got a bad deal, we could vote it down and try again, and again, and again.

The squeaky wheel gets the grease

As long as we’re be negotiating, could California maybe get more autonomy within the United States, instead of leaving? Like our state government is working for now?

Well, sure. Québec did. Scotland did. But you have to ask, and it helps if you leave all options on the table. Power cedes nothing without a demand.

Could California go it alone?

Enough about the U.S. side of things; could California actually function as an independent country?

In some sense, sure, of course: California has a bigger economy than France or Mexico, a bigger population than Canada, tremendous agricultural capacity, and, being surrounded by mountains and deserts, even has defensible natural borders.

But in terms of governance, well… almost?

Imagine, just as a thought experiment, that the United States did pass that constitutional amendment kicking California out. What should Californians waking up in an independent country the morning after worry about most?

No U.S. Constitutional rights

Californians actually have a ton of rights under our state constitution, including:

Some people might worry about losing the constitutional right to bear arms. Pretty much every other democracy in the world manages to stay free without one; the only exceptions are Mexico and Guatemala.

I’d be a lot more worried about the fact that all of these rights could be blithely overridden by majority vote, thanks to the initiative system.

Prop 8 (banning gay marriage) is probably the poster child for this; the California Supreme Court certainly tried to find a way to throw it out under the state constitution, but there just wasn’t a solid argument. Prop 8 was eventually ruled unconstitutional in federal court, on (federal) Equal Protection grounds.

California’s constitution has a somewhat vandalized version of the equal protection clause itself, but that doesn’t stop initiative constitutional amendments.

Let’s step out of the thought experiment for a moment (“what if the U.S. kicked California out?”) and instead consider a more realistic question:

What if a new U.S. Supreme Court ruled differently?

When the U.S. Supreme court finally ruled to affirm gay marriage, it was by a narrow 5–4 majority. And Prop 8 is still in the California Constitution.

Also, none of the rights I bulleted above are, strictly speaking, U.S. Constitutional rights anyhow. Privacy, sort of. The press protecting confidential sources, definitely not.

I don’t know what the exact solution is; maybe it’s deleting Prop 8, un-vandalizing our state Constitution’s equal protection clause, and saying that initiatives that violate this clause can’t go on the ballot or have any effect. That solves the biggest risk of the initiative system (the majority targeting a minority). Maybe we should lock down other Article I rights plus the voting rights in Article II too. Few of them were created by initiative anyhow.

The point here is, doing the thought experiment (“what if California were an independent country?”) helped us find a big problem with the way we do things now.

If you expect California to remain in the U.S. forever, it’s a hedge against a bad Supreme Court, and if you want California to someday be independent, fixing this is part of getting ready. It’s a win-win regardless of your opinion on independence.

What else can this thought experiment teach us?

No federal bailouts

If California were an independent country, it’d have to be fiscally independent. If there were a major earthquake, or even just a bad recession, California would be on its own. In theory, we could borrow if we had to (with the consent of the voters, as a general obligation bond), but our state’s bond rating is not stellar, and would probably be even less so as a brand new country. Same with floating a new currency; who would want it?

California made a great step in the right direction with Prop 2, revamping our Rainy Day Fund. But the way our state raises revenue is, to put it nicely, incoherent. Specifically, we can raise taxes by initiative, but if the legislature (the folks whose job it is to pass budgets) want to ask the voters if they want to raise their own taxes, it takes a 2/3 supermajority in each house.

What this means is that if we had a situation where a newly independent California were trying to replace social services provided by the federal government (Medicare, Social Security, Medicaid, TANF, SNAP, etc.), we’d be doin’ it by initiative, baby.

There’s a great way to fix this, which basically amounts to having the state set the level of combined state and federal taxation, and letting the legislature ask voters for changes by majority vote (check out How any state can declare fiscal independence). Depending where you stand, it’s either a way to make the State of California more robust and national politics less relevant, or practice for operating as an independent country. It’s the exact same policy either way.

Other win-wins

Here are some other opportunities for improvement that come into sharper focus with the independence thought experiment.

(Almost) no regional government

Call it federalism, devolution, bioregionalism, whatever; we don’t have a ton of it in California. Most counties aren’t big enough to handle regional issues like transportation and housing policy, so we fall back on state government (which is arguably too big), or a network of local districts.

For example, in the Bay Area, we have the Association of Bay Area Governments (ABAG), the Metropolitan Transportation Commission (MTC), and the Bay Area Air Quality Management District (BAAQMD), none of which are directly elected or have any real power to address our biggest regional issue, housing. Would it be such a stretch to merge these and related local districts (e.g. BART) into an elected regional government with real power?

It seems unappealing to add a fifth layer of government (in addition to city, county, state, and federal), but if we were a country (again, slightly bigger than Canada), people would naturally expect to see more federalism. And that layer’s already there; it’s just unelected and/or incoherent.

Separately elected chief executive team

The quirky bit in California’s constitution about the lieutenant governor becoming acting governor when the governor leaves the state would actually make a bit more sense if leaving California meant leaving the country.

But if California’s governor and lieutenant governor (president and vice president, I guess I should say?) are going to operate as a tag team, they should really be elected on the same ticket.

One-party democracy

In the current context of the United States, the level of Democratic party dominance in California serves as a useful counterweight to Republican hegemony at the national level.

But in the context of a country, this is just lame. It wouldn’t be one-party tyranny because of the initiative system, but it wouldn’t be ideal either. Arguably, we have at least three parties now in terms of ideology, but our electoral system makes it hard for more than two parties to be viable. It would be worth looking into some sort of proportional representation system, perhaps like the one described in this paper.

All three of these ideas have been kicking around in California for a while now, as something to do someday, when we have less problems and more political capital for reformist stuff. Imagining that California might be an independent country in the near future gives ideas like these a lot more context and urgency.

Reconcilable differences?

One final scenario to consider; what California and the United States were driven apart by irreconcilable differences and other circumstances largely beyond our control?

This is pretty much what happened to Czechoslovakia; support for splitting the country never got above 40% in either part of the country, but neither Czech nor Slovak elected officials wanted to cede to each others’ demands.

I want you to know that I don’t personally see this as a likely scenario. Just… likely enough to worry about. Put it in the same category as “what if Donald Trump somehow became president of the United States?”

What would those differences be? I can think of at least two:

Immigration

About 6% of Californians and about 10% of our labor force are undocumented (“illegal”) immigrants under federal law. 40% of undocumented immigrants in California are parents or other adult relatives of children who are U.S. citizens.

What this means is that a hard-line immigration policy driven by white nationalism, like we might reasonably expect from an Attorney General Jeff Sessions, would present an existential threat to California’s economy and society. California is not really in a position to back down.

Climate change and foreign policy

The other place California is unlikely to back down is climate change, which Californians see an existential threat to, well, everything. Governor Jerry Brown, one of our more subdued members of our state’s leadership in his reaction to Trump’s election, vowed to fight any effort by the next administration to roll back climate change policies:

“A lot of people say, ‘What the hell are you doing, Brown? You’re not a country,’ ” the governor said, to laughter.

“Well, judged by measures of gross domestic product of over $2.2 trillion, we’re the fifth or sixth economy in the world. And we’ve got a lot of firepower … And we will persevere. Have no doubt about that.”

Climate change, being a global issue, intersects with foreign policy. In fact, California’s government has conducted a good deal of its own foreign policy on this issue, signing a Memorandum of Understanding with China in 2013, and sending its own delegation to COP 21 in Paris.

Itching for sovereignty

What do immigration and foreign policy have in common? They’re traditionally handled by countries, not subnational units. I don’t mean just under enumerated powers in the U.S. Constitution, I mean in almost every country, ever.

Now, there’s no good reason these differences should be irreconcilable. None of this seemed like a problem under the Obama administration (where California’s main state-federal conflict was over education). Trump may change his mind, or back down, or simply burn up all his political capital on other fights. But if not, and if California really wants to go its own way, it ultimately would need sovereignty to do so. The resulting conflict could be unexpected and ugly.

If this does happen, it would be a really good idea to have some sort of contingency plan in place now that leaves both California and the (remaining) United States as viable, democratic countries afterwards.

Conclusion

Whether you like or dislike the idea of California becoming an independent country, it’s worth giving serious thought to what gaining independence would look like, and what the policy implications would be.

Most optimistically, this is a useful thought experiment that would help us reform state government. Most pessimistically, it’s a way to fend off a disaster. Probably the truth is somewhere in between.

By Dave Marin, who serves on our Board of Directors. This article originally appeared in California Rising.