On The Volokh Conspiracy, George Mason University law professor Ilya Somin writes about a topic that gets very little attention these days: Secession. That’s right. By states. From the United States of America.

Somin notes a recent Zogby poll that showed a surprising 22 percent of Americans believe that any state has the right to “peaceably secede from the United States and become an independent republic.”18 percent would support a secessionist movement in their own state.

Support for a secession movement in one’s own state was actually consistent among all regions of the U.S., though slightly higher in the South (24 percent).

Hispanics and African-Americans were also more willing to believe in the right to secession (43 and 40 percent, respectively) than whites (17 percent).

32 percent of liberals believed in the right to secede, compared to just 17 percent of conservatives.

Note: this is actually not as un-timely a topic as it seems; if you’ll remember, following John Kerry’s defeat in 2004, there was considerable discussion of secession by bitter Democrats and blue-state voters (shown above, a proposed map here) — not all of it on the fringe, either.

The idea isn’t just a joke; one top Democrat says, “The segment of the country that pays for the federal government is now being governed by the people who don’t pay for the federal government.”

“Some would say, ‘Oh, poor Alabama. It’s cut off from the wealth infusion that it gets from New York and California,’” said Lawrence O’Donnell, a veteran Democratic insider and now senior political analyst at MSNBC. “But the more this political condition goes on at the presidential level of the red and blue states, the more you’re testing the inclination of the blue states to say, ‘So what?’”

Slate even devoted an article — “Could the Blue States Secede?” — to examining the legal possibilities of secession.

Constitutional law professor Ann Althouse reacted with incredulity at the Zogby poll findings, saying that “all these people [who believe in a right to secession] have the law wrong and don’t seem to know the basics of the history of the Civil War,” and called them “fascinatingly stupid.”

But, Ilya Somin points out, that’s not necessarily true. His arguments:

1) The Constitution does not prohibit secession.

“I don’t think that belief in a right of secession by itself demonstrates ignorance about either law or American history. The Constitution is famously silent on the issue of secession. It doesn’t explicitly guarantee states a right to secede, but also doesn’t explicitly forbid secession.”

He adds that while the Articles of Confederation contained language describing the Union as “perpetual,” the Constitution “does not include any such language.” Therefore, “This silence has led to ongoing debate over the constitutional status of secession. Prior to the Civil War, many respected scholars and political leaders claimed that secession was permitted by the Constitution.”

2) The Civil War did not necessarily conclude that secession is prohibited:

There is no question that the federal government defeated the south’s attempt to secede. However, superior military might doesn’t prove superior constitutional right. There are many instances in American history where federal and state governments managed to get away with violating the Constitution by applying superior force. The imposition of Jim Crow segregation on blacks in the South is the most notorious example.

..I should emphasize that I think that the federal government was right to suppress the Confederates’ efforts to secede. But not because secession is always illegal and impermissible. Rather, the Union was right in that instance because the southern states sought to secede for the indefensible purpose of protecting and extending the evil institution of slavery. Moreover, none of the southerners’ constitutional rights had been infringed by the federal government. Things would look very different if a state sought to secede for the purpose of defending fundamental human or constitutional rights rather than continuing to violate them; if, for example, the feds were trying to force slavery on unwilling free states.

Interestingly, Somin notes that even Abraham Lincoln himself, in his First Inaugural Address, while saying he believed the Union was “perpetual,” left open the possibility that states had the right to secede: “If by the mere force of numbers a majority should deprive a minority of any clearly written constitutional right, it might in a moral point of view justify revolution; certainly would if such right were a vital one.” Lincoln, of course, correctly denied that the South met this standard in 1861.

Somin concludes:

In sum, the text of the Constitution is ambiguous about secession, and nothing in our later history definitively forecloses the possibility that secession might be permissible in some situations. The Zogby poll respondents might be ignorant in so far as they may believe that the federal government will allow states to secede at will. But they are not necessarily ignorant or stupid to believe that states have a right do so - irrespective of whether the federal government is likely to honor that right.

What do you think? Do states have the right to secede? Under what circumstances should they be allowed to do so?