May 13 · Soft Secession
Federalism For Anti-Fascists
Soft Secession, Oppositional Federalism, and the Constitutional Architecture of State Opposition.
Author’s note: I posted the full version of my research on how states can use their constitutional authority to oppose federal authoritarianism to a public academic database. It is 125 pages and free to download. Every download moves the paper higher on the database’s rankings, which is how journalists, legislators, law professors, and state attorneys general offices find new research. By clicking this sentence, downloading the full research article, and skimming the research, you tell the algorithm gods that this is important. That has a huge impact upstream on shaping the laws and attitudes of politicians in support of everything we work on here at The Existentialist Republic. It’s very important in a way that isn’t instantly visible but can substantially shift the direction our nation is headed.
State attorneys general are already prosecuting federal officers under state law. Serious legislation is being considered and approved in state houses across the country. Organizers are building the infrastructure that lets states function and thrive despite federal capture. The architecture is operational. What has been missing, until now, is the full constitutional framework that names what is happening, grounds it in two hundred fifty years of Supreme Court decisions, and explains why every piece of it is legally available to cities and states that have the courage to deploy it more purposefully. The paper I am writing about today is the map of a territory states are already crossing.
Earlier this year I told you I was building that framework. The first version ran about 15 pages and 8,100 words. The new one runs 125 pages and 64,000 words, it is free, and it is on an academic repository called SSRN. The link is at the bottom of this post, and I am asking you to download it.
The full title is Oppositional Federalism: A Taxonomy of State Constitutional Postures Under Authoritarian Capture. A taxonomy is a structured classification, a way of naming every form a thing can take and showing how the forms relate to each other. Federal authoritarian capture is what happens when the executive branch of the federal government acts outside constitutional bounds and the ordinary checks on that conduct stop working. My work builds a constitutionally viable framework for how states can respond when that happens, all based off the things our government has been doing in a scattered and uncoordinated way for our entire history.
The paper lays out five tiers of state constitutional posture.
The first is cooperative federalism, where states work with the federal government in the ordinary course.
The second is uncooperative federalism, where states stop assisting with federal enforcement; Yale Law professors Heather Gerken and Jessica Bulman-Pozen named this tier in the Yale Law Journal in 2009 and gave the field its foundational concept.
The third is soft secession, the term to describe states building parallel institutional and financial capacity so they can function and thrive despite federal misconduct.
The fourth is oppositional federalism, the term I coined and the central contribution of this paper, which describes states using their sovereign authority offensively, including prosecuting federal officers under state law when those officers commit state crimes.
The fifth is constitutional non-compliance, which applies in circumstances where the federal government itself acts outside constitutional bounds and a state must refuse to comply with a federal demand to protect its own constitutional order.
This research doesn’t exist to abandon red states, it exists to empower regions that believe in democracy and human rights while disempowering autocratic forces that are attempting to take total control of a nation. It’s the public policy version of harm reduction and treatment when the illness of authoritarianism becomes an existential threat.
The soft secession tier is the one readers often find counterintuitive. The objection that surfaces is usually some version of the worry that states cannot actually function without federal partnership. That objection assumes states are small entities propped up by federal generosity, which is counterfactual. California’s economy reached $4.25 trillion in 2025 and currently ranks fourth or fifth largest in the world depending on the year and the methodology. Texas at $2.9 trillion ranks eighth, ahead of Russia, Canada, and Italy. New York at $2.47 trillion is comparable to Canada’s entire national economy. Norway has a population of 5.4 million and runs a sovereign wealth fund, a strong social safety net, and balanced books. Denmark at 5.9 million, Finland at 5.5 million, and Sweden at 10.4 million do the same. Several US states have populations and economies many times larger than these countries and economies that dwarf them. Soft secession does not describe states withdrawing from a relationship that keeps them afloat. It describes states recognizing they already have the capacity to function as sovereign actors and building the institutional infrastructure to act on it.
The paper grounds all five tiers in doctrine the Supreme Court has built and reaffirmed across two and a half centuries. It’s not new.
The first doctrinal pillar is dual sovereignty, the principle that state and federal governments are separate sovereigns with independent authority to prosecute the same conduct.
The second is anti-commandeering, the rule that the federal government cannot force state officials to enforce federal law.
The third is the valid exercise principle, established in McCulloch v. Maryland (1819), which says the federal government can act only within powers the Constitution actually grants it.
The fourth is the limits of Supremacy Clause protection for federal actors who commit state crimes outside the lawful scope of their federal duties. There’s no law that makes criminal activity lawful. I did not invent any of this. It is the constitutional structure the country already has, as our founders intended, sitting in plain view, waiting for elected officials with the courage to use the tools the Constitution grants them.
The paper also walks through seven historical cases where states have done versions of this before. Volstead-era prosecutors charged federal Prohibition agents under state law when those agents killed civilians during raids. Northern states in the 1850s passed personal liberty laws to obstruct federal enforcement of the Fugitive Slave Act. More than half the country has legalized cannabis in direct contravention of federal law that remains on the books. Eisenhower deployed federal troops at Little Rock when Arkansas refused to enforce a federal court order. Contemporary sanctuary jurisdictions decline to cooperate with federal immigration enforcement. Second Amendment sanctuary counties have done the equivalent in opposition to gun regulation. For decades, state attorneys general have banded together across party lines to file coordinated lawsuits challenging federal action they consider unlawful.
The clearest parallel I can offer is the work Erica Chenoweth has done on civil resistance. People had been thinking about nonviolent movements for a hundred years before Chenoweth. What changed when Chenoweth published Why Civil Resistance Works in 2011 was that they built the empirical and analytical architecture that turned a set of moral arguments and historical anecdotes into a field with a vocabulary, a dataset, and a framework policymakers could engage with seriously. Chenoweth’s research gave the opposition something invaluable: proof. Studying hundreds of resistance campaigns across the twentieth century, they showed that nonviolent movements mobilizing and sustaining 3.5 percent of the population have never failed to produce regime change. Their work is one contribution to a field that thrills me, because it is the science of freedom, justice, and human rights.
I hope that part of what you takeaway from this academic contribution is that we are always just a handful of good ideas from changing things for the better. Humans have an astounding capacity for learning and that process can be what saves us all.
The shape of this paper is similar to Chenoweth’s work. People have been writing about uncooperative states, sanctuary jurisdictions, state attorneys general filing coordinated lawsuits, and the limits of federal power for decades, and Gerken and Bulman-Pozen named the foundational concept in 2009. What has been missing is the full architecture: the taxonomy that names every posture a state can take, the doctrinal foundation that explains why each posture is constitutionally available, the structural properties that determine how the postures combine, and the historical record showing the architecture has been operational across two centuries of American history. That is what this paper builds.
This is not a call for violence, not a call for formal secession, and not a call for states to break the Constitution. The argument runs in the opposite direction. The Constitution already contains, in its text and in the doctrine the Supreme Court has built around it, every tool states need to check a federal government that has slipped its constitutional moorings. What reads as legal impossibility is usually political choice. Federal officers have mostly avoided state prosecution for on-duty conduct not because the doctrine prohibits it, but because every failure was a political decision by an elected official who had the legal authority to act and chose not to. We have been leaving the tools on the table. Until that inaction starts costing them elections, they will largely remain unchanged. That’s where voting fits in this structure, even when federal voting infrastructure may be wholly or partially compromised.
The paper is also not a partisan document in the narrow sense. The doctrine works the same regardless of which party holds the White House, and the historical cases include states acting against federal policy in every direction across two and a half centuries. The framework is constitutional architecture, rather than political programming.
SSRN stands for the Social Science Research Network, and it is the place legal scholars, economists, and policy researchers post their work for other scholars to read, cite, and respond to. A working paper on SSRN is a finished draft, timestamped, public, and available for anyone in the world to download. The working paper is the real artifact. Scholars cite working papers regularly, Brookings analysts read them, and federal judges have cited SSRN papers in opinions.
Peer review is the next step. A law review or academic journal sends the manuscript to a panel of scholars who specialize in the field, and those scholars read the paper in detail, identify weaknesses, demand citations for claims that lack support, and either recommend publication, recommend revision, or recommend rejection. The process is slow and brutal by design. Anything that clears peer review has cleared a gauntlet of scholars whose job is to find what is wrong with it.
The submission window for the top constitutional law journals opens in late July, roughly two months from now. Until then the paper lives on SSRN. The working paper period is when scholars, attorneys, journalists, and serious readers engage with the argument and surface the problems that need fixing before a journal sees it.
SSRN ranks papers and authors by total downloads, and those rankings are how scholars, journalists, and policy researchers find noteworthy emerging work in a field. The top papers list and the top law authors list are not vanity boards; they are how the system decides which papers rise to the top of the reading queue. Working paper downloads count toward the rankings, which means if you follow the link to SSRN and download today, that does the same work as a download of a published article. Every download moves this paper up the rankings. When you send the link to someone, that secondary reader downloads it themselves, which means every share you generate produces multiple downloads rather than one. When law review editors evaluate this submission in late July, one of the things they look at is whether the paper has already attracted serious engagement.
If you are reading this and the prospect of 125 pages feels like a lot, I want to be clear about something:
The download itself is the contribution.
You absolutely do not have to read all 125 pages for your support to have impact. To multiply your impact, sending the link to an interested person who will engage with it is also very helpful. Each download gets this work closer to the journalists, judges, legislators and lawyers we are trying to educate.
Now, if you are inclined to read a 125 page document on constitutional law, this is your invitation to contribute. The community we have built here includes attorneys, scholars, organizers, current and former government officials, journalists, and a substantial number of people who have spent years thinking carefully about constitutional structure. Some of you are going to read this paper and find things I missed, framings I should reconsider, or counterarguments I did not address with enough rigor.
I need to hear it. The working paper period is when readers like you flag those concerns, allowing me to correct them before the manuscript goes to a journal.
To that end, the comments on this post are open, and so are my DMs.
The paper is long, and is very different from the tone and tack I use on Substack. Academic writing tries to do something journalism does not, which is to anticipate every objection a hostile reader might raise, and resolve it in advance. To answer a challenge before anyone has the chance to raise it. It can be verbose, meticulous, and exhaustive, but don’t let that scare (or bore) you! If you can follow the articles on this Substack, you can follow this paper.
Download the paper here: https://ssrn.com/abstract=6416178
We have been building this paper together, and together we have reached the next step.
Long academic projects like this one are usually funded through university appointments, grants, and institutional support. This one is funded by readers. The paper represents years of work, and the framework behind it draws on a decade of policy research, model legislation drafting, and constitutional analysis. The Substack subscription is what makes the time possible. Paid subscribers fund the long-form work that does not pay for itself, and they make it possible to keep producing free booklets, model legislation, and academic papers that everyone can access regardless of their ability to pay.
Subscribe by email →