The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last week, I had the privilege of being one of several commentators in the Balkinization symposium on two new books on secession: Timothy William Waters' 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). My piece is available here. Buckley and Waters have now responded to their critics. Buckley's response is here. Waters' is divided into two parts: one covering general issues, and one those specific to the United States.
Buckley's response doesn't focus much on the points I raised, instead choosing to focus on those of others. Waters, however, did respond to my concerns that secession referenda of the sort he envisions might be influenced by political ignorance, and that they could lead to the establishment of states that are more unjust and repressive than the ones they displace:
Somin's fear that secessionists might be "severely oppressive" shouldn't concern us. Not because they won't, or because small is better. (I argue at length against assumptions that smaller states are worse, but avoid Buckley's claim that they're necessarily better. Better is the state whose people desire it.) It's because there's no data to support the fear that they'll be worse – besides, we have few ways to ensure good behavior by existing states. It's less a prudential objection, more a default preference for the status quo.
And Somin suggests an ameliorating move I favor: nothing precludes additional requirements – human rights, minority protections, denuclearization. A right of secession isn't self-actuating, it needs diplomatic support – so secessions are moments of leverage (which we don't have over existing states).
But change is risky: Why vote on such momentous questions, when people are so demonstrably ignorant? Somin worries people will make foolish choices. But that's a concern for democracy in general. Existing states are often ethnicized and no more likely to promote unbiased decision-making; at most, they have the grim virtue of stable expectations. Yes, the stakes are higher in secession – which is precisely why it's desirable to ask the people directly. To say people cannot be trusted is to say that the most essential question of governance cannot be asked. (Nothing prevents states from incorporating elites or legislative input. And Somin's point suggests something I didn't emphasize in Boxing Pandora: the best referenda will be two-staged. A confirmatory vote would have dramatically reduced Brexit's dysfunction.)
I actually agree with much of what Waters says above. For example, I too believe that there should not be a strong default presumption in favor of existing governments, and have made a similar argument myself. It is certainly true that existing states are often "ethnicized" and feature racial and ethnic discrimination and oppression. Waters is also right that political ignorance is a more general problem with democracy that goes beyond the specific example of secession referenda. Not only do I agree with that point—I've even written an entire book about it. More generally, I agree with Waters' thesis that secession should be more easily and widely available than it is under the status quo in most countries.
That said, I do still have a few nits to pick here. While public ignorance is a serious problem for a wide range of democratic processes, it is likely to be especially pernicious when the issue at hand is heavily tinged with racial or ethnic hostility, as is often the case with secession referenda. In addition, the consequences of secession may be harder for "rationally ignorant" voters to assess than are those of more "normal" political decisions. Moreover, the combination of ignorance and bias may exacerbate the risk of creating a new state that is more oppressive or otherwise worse than the old.
This doesn't mean that secession referenda should never be held. But it does mean they may often require special safeguards. Thus, I am glad to see that Waters endorses my "ameliorating move" of imposing additional requirements on secessionists, such as adherence to human rights norms. I also agree with him that "confirmatory" second referenda may often be desirable. But notice that these restrictions would be significant constraints on Waters' initial, relatively simple framework, where secessionists would be allowed to form a new state any time they win a simple majority vote within a territory they themselves define.
That said, I think there is more common ground than divergence between Waters and myself on these issues, especially now that this exchange has narrowed the disagreement over the conditions under which a referendum should lead to the establishment of a new state. My differences with Waters are not as great as our shared reservations about the status quo.
Finally, I continue to believe that expanding opportunities for people to "vote with their feet" will often be a better way to increase political freedom than secession. I outline that argument in greater detail in my contribution to the Balkinization symposium, and in my just-published book Free to Move: Foot Voting, Migration, and Political Freedom.
I urge interested readers to read the other contributions to the symposium (available at the Balkinization website), which raise a variety of important points about the possibilities and limits of secession, both in the US and around the world. There are pieces by Jack Balkin, Sanford Levinson, Michael Lind, Cynthia Nicoletti, and Robert Tsai.
Thanks to Sandy Levinson and Jack Balkin for putting this event together!
UPDATE: Jack Balkin has put up a complete list of links to posts in the symposium here.