Secession

Balkinization Symposium on Secession

The symposium, which includes a contribution from me, reviews important new books on secession by Timothy William Waters and Frank Buckley.

|The Volokh Conspiracy |

The Balkinization site is running a symposium on two important new books on secession: Timothy William Waters's Boxing Pandora: Rethinking Borders, States, and Secession in a Democratic World (Yale University Press, 2020) and F. H. Buckley's American Secession: The Looming Threat of a National Breakup (Encounter Books, 2020). I am one of the contributors, and my piece is available here. Among other things, it draws on my own new book Free to Move: Foot Voting, Migration, and Political Freedom, which offers an alternative (and in my view better) path towards enhancing political choice than expanding secession rights. Here is an excerpt:

The conventional wisdom on secession is that it is rarely justified and should only be used as a last resort for escaping severe oppression, as a means of "decolonization," or perhaps to give autonomy to some ethnic group that deserves a state of its own. In different ways, Timothy William Waters and my George Mason University colleague Frank Buckley offer powerful challenges to that conventional wisdom. Waters contends that any group that wins a majority-vote referendum within a given territory with a population of at least 1 million people should have a presumptive right to secede and form their own independent state. Buckley suggests that the people of the United States might be better off if secession movements resulted in its partition, though he ultimately shies away from recommending such a course of action.

Waters and Buckley are right to argue that secession is justifiable in a wider range of circumstances than conventionally thought. But I am not convinced that secession rights should be as ubiquitous as the former advocates, or that the world would be a better place if secession led to the breakup of the United States. Both Waters and Buckley also do not give sufficient weight to some significant downsides of secession, such as the role of political ignorance in promoting secession movements, and the danger that the newly established governments might be severely oppressive. For these reasons, the problems that secessionists seek to address will often be better managed through decentralization of power within federal systems and expansion of opportunities for people to "vote with their feet…."

Like secession, expanding foot voting opportunities would enable more people to escape governments they abhor and live under those whose policies they like better. But foot voting also has three major advantages over secessionism. One is that foot voters can make individually decisive choices. If allowed to migrate freely, each individual or household would have a high chance of determining their own fate, as opposed to casting a vote in a referendum that has only infinitesimal chance of affecting the result. This is both valuable in itself, and incentivizes foot voters to be better-informed than ballot box voters. Empirical evidence indicates they generally are.

The second big advantage of expanded foot voting over secession rights is that the former is much less likely to lead to violence or war, because it does not pose anywhere near as grave a threat to existing governments. Expanding foot voting opportunities is often politically difficult. But it is usually less so than carving out entire new nations from the territory of existing ones.

Finally, foot voting has an important edge over secession because it is easier to expand incrementally. Secession is generally an all-or-nothing proposition. Either a new nation is formed on part of the territory of the old, or not. By contrast, we can incrementally expand foot voting opportunities…..

The symposium also includes posts by several prominent academics and political commentators, such as Jack Balkin, Michael Lind, Cynthia Nicoletti, and Robert Tsai. More are forthcoming in the next few days (complete list of contributors here). Buckley and Waters will have an opportunity to respond to the critics, at the end of the symposium.

NEXT: A Tension in Judge Wilkinson’s Emoluments Clauses Dissent

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  1. Nominal determinism in action!

  2. The issue with federalism is it only works if all sides tolerate some degree of tribalism. That was, essentially, what broke the country during the civil war. The North was no longer willing to tolerate slavery (among other issues). The issue of civil rights also was a big dividing line between the North and South during the 20th Century. Both times, in general brushstrokes, the North sought to impose its moral/ethical views on the South. One time it resulted in a shooting war and the second time it was a lot of social unrest. Most people will say the North was justified in doing so, and maybe it was. My point is not to pass judgement on these things, but to point out that what is required is a large degree “of live and let live” in order for a system like that to work. Is California going to tolerate mid-Western states that heavily restrict abortion or enforce immigration laws with zeal? Same question can be asked of a state that has the complete opposite approach to laws then the more liberal Northeast. Only if the answer is “yes” are we ever going to find a system where you truly vote with your feet.

    1. I believe a large part of the North’s hatred of the South was not slavery itself, but the slavocracy: the 3/5 clause which gave Southern whites so much disproportionate political power in Congress. They resented being pushed around by the Fugitive Slave Act, corruption of the post office, too much say in tariffs, etc, by a population half the size of the North’s white population.

      I don’t know how much Northerners actually hated slavery per se.

      1. “the 3/5 clause which gave Southern whites so much disproportionate political power in Congress.”

        Except the likely alternative was that slaves would count in full for determining representation in the House while not being allowed to vote.

        When the constitution was being drafted the slave states wanted slaves counted in full the free states wanted them not to be counted at all.

        Neither side had the votes for a clear victory in the constitutional convention.

        Given that, the only doable compromise other than the 3/5th clause would have been to leave the constitution silent on the issue which would likely have given the slave states an effective win on the issue due to other language in the census clauses.

        So while the slave states had disproportionate power in the House , they would have had even more power in the absence of the 3/5ths clause.

        1. Painting the 3/5ths clause, (Once known as “the 3/5ths compromise.) as an unalloyed win for the slave states is part of the push that’s been going on for a couple decades now, but intensifying the last few years, to try to discredit the whole Constitution as being about protecting slavery.

          It’s too popular to dispense with, so they’re trying to tear down it’s reputation.

    2. The conflict becomes greater when some issue is inherently going to seek an equal level across the country, even if states do adopt different policies. The fugitive slave act pulled the free states into complicity with the slave states. Today, the anti-gun states will claim that they could suppress gun ownership if only guns weren’t legal in other states, while immigration restrictionist states rightly note that, given freedom of travel within the US, even one open borders state means they’re all open borders. And, of course, freedom of travel also implies even one pro-“choice” state means women from all over the country can kill their babies.

      1. ^THIS … I always used to look at California mandating tax-payer funded sex changes and grimace … and then laugh — sucks to be them … and moved on.

        When *I* am being forced to pay … the laugher ceases.

        Not every issue is slavery … or abortion

    3. Jimmy the Dane : “That was, essentially, what broke the country during the civil war. The North was no longer willing to tolerate slavery ”

      A little bit bassackwards, don’t you think? What broke the country and brought civil war was Southern rage over any restriction of slavery’s expansion into new lands. You see that repeatedly in the decades leading up to war, from the repeated compromise bills – each one a high drama threatening disaster – to the “filibuster” expeditions by Southerners into countries like Cuba, Nicaragua, and Colombia, where they sought to seize new land for slavery by force.

      The “States Rights” crowd we always hear about were always aggressively and militantly federalist when the issue was slavery. The actual trigger of war was the (then-dominant) Democratic Party splitting along sectional lines – all because Stephen A. Douglas called for popular sovereignty in the territories to settle the issue of slavery. The South refused to accept voting on that, so broke off to form their own party. That led to Lincoln’s election and secession.

      Civil war came because the South couldn’t impose its values on others, not the other way around….

      1. The slave states were concerned that, if slavery were restricted to just the states already legalizing it, as the country expanded they’d inevitably end up a small enough minority of the states that even voting as a block, they couldn’t prevent slavery from being outlawed.

        So they were desperate to extend slavery to the territories, just as the free states were to keep it from being extended.

        1. Sure. The South was afraid of diminishing political power if a growing percent of the country was Free. But that’s a different narrative than Jimmy the Dane suggested above. The side repeatedly threatening national unrest if their demands weren’t met was the South. Before seceding after Lincoln’s election, Southerners had already threatened secession over & over the previous decades – if they didn’t get their way.

          The side rejecting popular elections to settle slavery in the new territories was the South. The side rejecting States Rights on the issue was the South. The side demanding the federal government enforce their beliefs was the South. The side trying to conquer foreign countries to impose their ideology was the South.

          I doubt either North or South would rate very high on what we call “tolerance” back then. But compare the two and there’s no comparison. The South was far more militaristic trying to force their way on others.

          1. While I agree with most of this I think you are incorrect about the South rejecting popular elections to decide the issue of slavery in the new territories. The South was getting at least half a loaf with the Kansas Nebraska Act in that it repealed the Missouri Compromise and allowed the possibility of slavery above 36’30. The South’s vote was unanimous in favor of it.

            1. As I noted above, the issue of elections to settle slavery in each new territory directly caused the Civil War. The Democratic Party of its day had a lock on political power and supported the South on slavery. It splintered into North & South factions over one issue : Stephen A. Douglas’ call for popular sovereignty in the territories to settle the issue of slavery.

              The South considered that a betrayal, despite Douglas’s support in the past. Southern delegates left the 1860 Democratic National Convention en masse for a separate convention, nominating their own candidate, John C. Breckinridge. The split party led to Lincoln’s election.

  3. Who needs to carve out an entirely new nation? Just expand Canada. Combine the present American Northeastern states, down to at least Maryland, and the 3 west-coast states, into a few warmer Canadian provinces. Let northern states in the intervening distance between the coastal states sign up for parliamentary government or not, just as they please. Whatever is left is still the (smaller) United States of America.

    If Republicans still control the U.S. government after January 20, I’m all in for becoming a Canadian. But remember, when it comes to parceling out the national debt, the states going to Canada have to take their share with them. To figure it out, the debt gets divided into 50 equal chunks, and parceled out per state, not per capita. Might be hard on Wyoming, but it’s only fair.

    1. You really hate the Senate and Electoral College representation, don’t you? Can’t resist grinding your teeth every chance you get. Your dentist must love you.

      1. Á àß — Ah, per-state voting. A sword for real Americans to wield. AND a shield for real Americans to hide behind. What could be better!

    2. To figure it out, the debt gets divided into 50 equal chunks, and parceled out per state, not per capita.

      Lol. I can think of a few people other than Wyoming who might have a problem with that.

  4. I would allow anyone who owns a border parcel to shift his parcel to the neighboring district for election purposes, if the new district had fewer votes than the current one, as a means of avoiding reapportionment after a census. I would also have each representative proxy their election votes as another means of dumping the census.

    Never thought much about allowing border parcels to shift states, or even countries, but that would be interesting. About the only restriction I’d put on it would be allowing the new country to veto the transfer. But the old country should have no veto.

  5. “secession rights” ???

    Don’t we have the inalienable human right to overthrow government (not reform but overthrow)? We said in The Declaration that we had the right.

    It is not a right ever granted by governments. It is understood that exercise of our human right almost always means bloodshed, and if the revolution fails we shall surely hang.

    What is secession other than overthrow by some fraction of the country?

    1. No one I know of argues that a sufficiently-aggrieved population can’t rise up in revolution against the established government. But that’s revolution, justified in the only way that revolution can be, by success.
      The disputed issue is whether an aggrieved population can hold onto the portion of the national territory it occupies and leave the established government and expect that decision to be respected by the established government — peaceful and successful departure over the objection of the established government. This blog gets a fair number of commenters who argue that when the Confederate states decided they wanted to secede, they were somehow entitled to walk out without let or hindrance, and the government of the United States violated their rights by not letting them walk. If you will, a unilateral legal right to secession.
      To be sure, a government charter can be set up that incorporates ways in which disgruntled sub-units can leave as a matter of right within the rules of the system, and even in the absence of such provisions, if the government has no objection to, say, Florida leaving the union, an ad hoc procedure for mutually-agreeable secession could be slapped together. But we don’t have an agreed-upon method for secession, so the sufficiently disgruntled must fall back on revolution and take their chances. They can’t leave, then whine if the established government tries to get them back. They can fight, but they can’t whine.

      1. The problem with letting the states secede is that the federal government owned the Louisiana Purchase territory first and so those states aren’t free to secede. Plus the Mississippi River and New Orleans were never going to be allowed to secede and sure enough that is the territory the Union first got back. Then think about slaves if the South were successful? Instead of running to Canada for freedom now then only have to make it to Pennsylvania…so the that would beget more wars. So the South didn’t want to actually secede they wanted a Democrat to win the 1864 election.

        1. “and so those states aren’t free to secede.”

          That doesn’t really follow, you realize. Once the territories became states, they were automatically entitled to every right/power that the original 13 states had; That was one of the fundamental principles the federation was founded on, that all states would have equal status.

          So, if the original states were entitled to secede, new states formed out of the territories would be just as entitled to.

          1. Brett, forget the entitlement to secede. You should get your wish without seceding. The blue states should leave you.

            Red states will at last be free to make their own policy, and pay their own bills. The Mexican border will be all yours, and you can do what you want with it. Probably, red staters who hate blacks will be free of them, because I doubt many blacks will stick around in Trump-land with no prospect of help from civilization.

            (By the way, have you noticed that blacks generally excel Trump fans in resourcefulness, courtesy, energy, self-reliance, and civic mindedness. Smarter than Trump fans, too. The North will make you a deal, we get your blacks, you get our Trump voters. You get Trump, too, and we get Obama.)

            Happy days for everyone, Brett. Enjoy minority rule by the oligarchs. We’re joining Canada—if they will have us.

            1. I don’t see secession happening, and certainly not peacefully if it does. The basic split in America isn’t East-West, North-South, coast-interior, or any easy division like that. It’s urban center/everywhere else.

              Accordingly there’s no easy line you can draw to split the country, the divisions reach into every state.

              1. Brett, nonsense. The distinction you cherish, where acreage counts more than people, is what two conspicuously solid blocs of states, east and west, are fed up with.

                Those states want legitimacy dependent on people, mainly because they are largely urbanized states, with only smallish cohorts in their hinterlands, even where those hinterlands are notably extensive, as they are in Maine, New York, Pennsylvania, Washington, Oregon, and California. And if interior Pennsylvania turned out to be a problem, let the red states keep it, with the western and eastern urbanized parts still stuck to New York and New Jersey.

                Unlike the South, unlike the Mid-west, unlike the Inter-mountain West, those largely-coastal blocs are dominated politically by urbanized populations, with less imposing political rivalry from the hinterlands. There would be no violence from interior denizens in the Northeast, and probably not in the West either, as long as the Western bloc is only the three coastal states. If those blue states wanted to secede and join Canada, for instance, interior violence in blue states would not be a notable problem.

                What would probably happen is that the more-disgruntled right wingers in blue states would decamp and head south, just as many left-wing types from red states would probably out-migrate toward the northeast or the far west. Somin’s foot-voting, brought to life. Two happier nations maybe. What’s not to like?

  6. Richard Kreitner had a fascinating piece in the April 23rd op-ed page of the NYT. https://www.nytimes.com/2020/04/23/opinion/coronavirus-states.html?searchResultPosition=1

  7. “The several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force. . .

    To this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party (State) has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”

    Jefferson

    1. Tom, f**k off.
      Lincoln, C.J.
      Grant, J.

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