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Take the recent example of the clash over Arizona's anti-illegal immigration law. Throughout the course of the debate over Arizona's controversial law, SB 1070, signed into law in April 2010 which gave police to screen for undocumented immigrants, the secession issue has been raised by voices on both sides of the political spectrum. Suggestions included not only separating Arizona from the United States, but also dividing Arizona into two different states, an idea that has some support based on an online poll released last year.
Can a state unilaterally secede from the United States? The short answer is no. (That happens to be the long answer, too, but it comes with an explanation.)
Prior to the Civil War, there was an open debate about the nature of the union among the states. As Slate's Sam Schechner noted in 2004, the debate in 1830 between Daniel Webster and Robert Hayne hit at the heart of the issue: Were the states parts of a whole? Or independent entities bound by treaty?
The Civil War settled the issue, particularly with the passage of the 14th Amendment, as Schechner notes, which defined for the first time citizenship on federal grounds instead of belonging to the states. Supreme Court Justice Antonin Scalia has even addressed the constitutionality of secession and how a state would go about it in a letter to a screenwriter who posed the question:
To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, "one Nation, indivisible.") Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.States may not be able to legally secede from the Union. But that doesn't mean they don't have the ability to affect the total number of states in the Union. As TIME magazine reported when the state secession issue reemerged in national media coverage in 2009, Texas, for example, has the right to split into five different states. Other states have seen their fair share of partition proposals over the years, but none have really gained steam.
A partition, however, wouldn't have the same implications as a secession. The state, now states plural, would still remain the sovereign territory of the United States, instead of being a nation in its own right. A partition is also legal, and has a precedent (although it's only been done four times in U.S. history, the last of which was 1863 with the creation of West Virginia).
The arguments for the right of secession are unequivocal.
There has to be a specific constitutional prohibition on secession for it to be illegal. Conversely, there does not have to be a specific constitutional affirmation of the right of secession for it to be legal. Why? Because the 10th Amendment to the United States Constitution states:
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.
There is no constitutional prohibition on secession, nor is there a constitutional sanctioning of any kind of federal coercion to force a state to obey a federal law.
Thus, there is the constitutional right based on the Compact Theory, and the revolutionary right based on the idea that a free people have the right to change their government anytime they see fit. The Compact Theory views the Constitution as a legal agreement between the states - a compact - and if any one state violates the compact, then the entire agreement becomes null and void. Northern states during the War Between the States unquestionably violated the Constitution on a number of grounds. (Use your Google Machine for details.)
The revolutionary right of secession is based on the Declaration of Independence and the philosophy of Thomas Jefferson and John Locke, that "whenever any form of government becomes destructive of the ends for which it was established, it is the right of the people to alter or abolish it, and to institute new government..."
And for those who try to say the Constitution was not a compact, consider the words of James Madison, in the Virginia Resolutions of 1798, "That this assembly doth explicitly and peremptorily declare, that it views the powers of the Federal Government as resulting from the compact, to which the States are parties." Madison further says that the Constitution is "a compact among the States in their highest sovereign capacity."