Secession

Tim Waters and Frank Buckley Respond to Critics in the Balkinization Symposium on Secession

In this post, I link to their responses and offer a brief rejoinder to Waters.

|The Volokh Conspiracy |

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.

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  1. “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.”

    Foot voting and secession work together: Foot voting is useless without having jurisdictions available to move to that have different policies, and secession generates such. Indeed, isn’t generating such the point of secession? If people agreed on policies, they wouldn’t want to part ways!

    1. But “foot voting” is why we know the goal of the South in 1861 was not to actually successfully secede—slaves would have a much easier time escaping to Pennsylvania instead of Canada.

      1. Not quite: After secession the Confederation would have had an easier time establishing a controlled border, so it probably would have aided them in shutting down the underground railroad. The South’s problem with the border with Canada was that it was adjoining free states, which weren’t terribly interested in keeping escaped slaves from crossing it.

        1. Best case scenario would have Louisiana and Arkansas and Missouri and still in USA because USA would never give up Mississippi River. So Texas probably stays in America because of fear Mexico would try to retake it. Obviously West Virginia stays in USA. Also Key West and south Florida stay in USA. So that is simply too much border with too many mountains and rivers and bodies of water to ever secure.

      2. Of course the goal of the South was to secede. For example, with the Corwin amendment, they had the opportunity to keep slavery by Constitutional amendment, if only they would stay in the Union. Lincoln supported this. The South was not interested because they wanted independence.

        1. Yes, most accounts of Lincoln tend to downplay the degree to which he was willing to preserve slavery to keep the South from seceding. Abolishing slavery was, for him, entirely a wartime tactic.

          ” Executive Mansion,
          Washington, August 22, 1862.

          Hon. Horace Greeley:
          Dear Sir.

          I have just read yours of the 19th. addressed to myself through the New-York Tribune. If there be in it any statements, or assumptions of fact, which I may know to be erroneous, I do not, now and here, controvert them. If there be in it any inferences which I may believe to be falsely drawn, I do not now and here, argue against them. If there be perceptable in it an impatient and dictatorial tone, I waive it in deference to an old friend, whose heart I have always supposed to be right.

          As to the policy I “seem to be pursuing” as you say, I have not meant to leave any one in doubt.

          I would save the Union. I would save it the shortest way under the Constitution. The sooner the national authority can be restored; the nearer the Union will be “the Union as it was.” If there be those who would not save the Union, unless they could at the same time save slavery, I do not agree with them. If there be those who would not save the Union unless they could at the same time destroy slavery, I do not agree with them. My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that. What I do about slavery, and the colored race, I do because I believe it helps to save the Union; and what I forbear, I forbear because I do not believe it would help to save the Union. I shall do less whenever I shall believe what I am doing hurts the cause, and I shall do more whenever I shall believe doing more will help the cause. I shall try to correct errors when shown to be errors; and I shall adopt new views so fast as they shall appear to be true views.

          I have here stated my purpose according to my view of official duty; and I intend no modification of my oft-expressed personal wish that all men every where could be free.

          Yours,
          A. Lincoln.”

          1. “Abolishing slavery was, for him, entirely a wartime tactic.”

            Slight correction. Pronouncing slaves to be free in enemy territory where he had no power to actually do anything (therefore freeing no one and abolishing nothing), while protecting slavery in the Union States where he did have power to do something, was for him entirely a wartime tactic. Which is why he called it a wartime measure right in the document.

          2. He was telling Greeley what he wanted to hear. That was not his actual position, as he demonstrated soon thereafter, with the Proclamation and then the attempt to assist the Underground Railroad ahead of a possible McClellan victory in the 1864 election.

            1. No, as ML notes, the Emancipation Proclamation only “emancipated” slaves in territory the Union had no control over. Slave states that didn’t secede were excluded. Purely a propaganda effort as part of the war, it didn’t free anybody.

              I’m not saying that Lincoln didn’t have a general opposition to slavery. But the Greeley letter is the real deal.

              Lincoln didn’t think blacks and whites could coexist, he favored relocating the freed slaves. He actually wanted to ship them off to Liberia. And to colonies in other locations, too. And didn’t stop at just wanting it, plenty of them got actually sent off.

              1. Facile. That Lincoln didn’t antagonize the loyal border states during the war with the Emancipation Proclamation is hardly remarkable and telling about his ultimate goals, is it? How do you square your view here with, say, Lincoln’s last public address (in which he endorsed black suffrage)?

                1. My assertion is that Lincoln prioritized holding together/restoring the Union over freeing the slaves. He was quite explicit about being willing to give up on opposing slavery to keep the country together, and his actions matched his words.

                  Once the war was won, and the slave states brought back in at the point of a gun, and temporarily disenfranchised, too, he could proceed with the secondary objective of freeing the slaves, since it no longer threatened his primary goal.

                  I never said he didn’t want the slaves freed, just that it wasn’t his first priority. It was lucky for the slaves that the South hadn’t taken his offer.

                  1. The South seceded not because of what Lincoln would do but because of what was inevitable—the delicate balance of slave state/free state was about to be disrupted because Manifest Destiny ended up helping Whigs like Lincoln that opposed Manifest Destiny because they didn’t want slavery to expand to new states.

                    1. The South seceded because they understood what this meant:

                      A house divided against itself cannot stand. I believe this government cannot endure, permanently half slave and half free. I do not expect the Union to be dissolved—I do not expect the house to fall—but I do expect it will cease to be divided. It will become all one thing or all the other.

                      Lincoln and the Republicans were not going to tolerate the continuing existence of slavery despite what Lincoln professed during the early stages of the war. The days of compromise had come to an end and the South understood that.

                  2. the slave states brought back in at the point of a gun,

                    I am puzzled by your apparent resentment at the way the Confederate states were treated after the war. To my understanding, it is common for the losing side in a war to make concessions to the victor, and it does not seem that the concessions here were particularly oppressive. I’d say the South got off pretty light.

                    Do you really think they should just have been readmitted with a slap on the back and a friendly, “No hard feelings” form the north?

                    1. Got off pretty light? This war had as many casualties as all other US wars combined, maybe more. Losses were much heavier on the confederate side as a percentage of population. The South was destroyed and totally depleted, without food or money, facing starvation. Their property was transferred to Northerners.

                      But this is maybe beside the point. It’s puzzling that you are puzzled by the phrase, “the slave states brought back in the at the point of a gun.” That is what the war was.

                    2. M L, the South wanted the war and the goal of the war was to make the country war weary so they would elect a Democrat in 1864 and pass laws to perpetuate slavery. Secession made no sense when it made slavery less sustainable due to slaves “voting“ with their feet by running away to free states.

                    3. I’m puzzled by your apparent resentment of simply accurately describing what happened. I wasn’t making a moral judgement there. That’s just what happened.

                    4. Yes, ML, they got off pretty light in the postwar dealings.

                      And no, their property was not “transferred to the North.”

                      The bulk of the property they lost was the slaves, to which they had no right to begin with. Of course they re-established de facto slavery as soon as they could.

                      The destruction and the casualties were certainly huge, but the south wanted war.

                    5. Brett,

                      You’re crawfishing again.

                      You’ve made the complaint repeatedly, including with reference to the ratification of the postwar Amendments by southern states.

                      If you’re not resentful, why repeat it incessantly.

                    6. ML
                      The South was devastated by the war but it did get off pretty light in Reconstruction. The same people, or their physical or ideological heirs, regained power in short order despite Grant being determined to get full citizenship for the freedmen. There simply was not the type of determination in the North to prevent this power reversion that existed among the Allies after WWII wrt the Nazis in Germany.

                    7. ” it is common for the losing side in a war to make concessions to the victor”

                      Yes…and no.

                      This was a common thread at the time. Typically with inter-nation wars. The “losing” side would lose territory, power, money, etc. IE, the Crimean war, Franco Prussian War, WWI, etc. Unfortunately, these concessions would often create long term animosities that would continue. WWII (Where the losing side was treated relatively well after the war) ended up far better in the long term

                      Futhermore, the US Civil war was a civil war. In essence, one nation (depending on your view) either entirely took over the other country or re-unified a divided country. In many ways, the political battles over reconstruction (1865-1877) and the relatively poor treatment of the South by the victorious North had many long term consequences, creating long term, generational animosities, that in part continue to this day. A more generous treatment of the South (ala Japan and/or Germany after WWII) may have avoided these long term animosities.

                    8. AL

                      In many ways, the political battles over reconstruction (1865-1877) and the relatively poor treatment of the South by the victorious North had many long term consequences, creating long term, generational animosities, that in part continue to this day.

                      I take a rather opposite view on this. I think it was a big mistake to let the South’s leaders off so lightly. There should have been at least imprisonment for all of them including Lee and the other generals. There should have been a much longer Federal military presence in the South and a determination to permanently replace the leadership with people who favored, or at least didn’t oppose, Reconstruction. Far more should have been done to elevate the condition of the freed slaves, ensuring that they gained full citizenship rights.

                      Resentment was inevitable but not a consequence of harsh treatment but of being stripped of power. The later Lost Cause bullshit was just propaganda to attempt to justify a society that they knew in their hearts was evil.

                    9. “M L, the South wanted the war and the goal of the war was to make the country war weary so they would elect a Democrat in 1864 and pass laws to perpetuate slavery. ”

                      No, the South wanted to secede peacefully. As states seceded the withdrawing Senators bade farewell and Davis gave a speech imploring the Senators to allow peaceful secession. Some in the North believed they had the right to secede and should be allowed to do so peacefully, and some disagreed. The newly formed CSA appointed a commission of delegates to establish “friendly relations” with the US government and negotiate terms of peaceful secession. Lincoln and Seward steadfastly ignored and refused to receive the commission. The bloodthirsty Lincoln would not even talk peace.

                    10. “Brett,

                      You’re crawfishing again.

                      You’ve made the complaint repeatedly, including with reference to the ratification of the postwar Amendments by southern states.

                      If you’re not resentful, why repeat it incessantly.”

                      What I resent is that some people want to use what was done during the Civil war to establish precedents. To claim it was done then, so it must be OK to do.

                      But the federal government under Lincoln did horrific things back then. Shut down newspapers and courts in areas where there wasn’t any fighting to disrupt things. Jailed political opponents. Lincoln assumed dictatorial powers without any constitutional basis for doing so.

                      The legislature refused to seat legitimately elected representatives, while insisting the states they were elected from were still states. And then proceeded to conduct business without a quorum by declaring the quorum to be based on the reduced number of representatives.

                      After the war was over, amendments to the Constitution were “ratified” by legislative chambers with armed soldiers present enforcing “yes” votes.

                      The Civil war was a horrible departure from the rule of law and constitutional government in the US, and it was this for years on end. It was a blueprint for how to turn a democracy into a dictatorship. And some people want to say all those actions were legitimate!

                    11. M L, Manifest Destiny simply does not allow two nations that hate each other sharing a border. The South threw a temper tantrum and Lincoln’s hand was forced. Btw, Lincoln’s top adviser also happened to be Jackson’s top adviser so Jackson and Polk would have done the same thing Lincoln did. As an aside FP Blair ran a newspaper that was propaganda for Andrew Jackson so Fox News falls cleanly within the boundaries of traditional American media.

                    12. donojack,

                      “I take a rather opposite view on this. I think it was a big mistake to let the South’s leaders off so lightly.”

                      Really? What would you have done? Taken the leaders who were preaching reconcilliation with the North, and imprisoned them and/or executed them? Turned them into martyrs for the South? Given some of the most experienced military men of their generation no option but to turn guerilla or be executed? Extended the military control over part of the south past 12 years? To what? 20 years? 40?

                      That would have only deepened the divisions, and potentially spawned a massive guerilla war throughout the South

                    13. AL

                      Really? What would you have done? Taken the leaders who were preaching reconcilliation with the North, and imprisoned them and/or executed them? Turned them into martyrs for the South? Given some of the most experienced military men of their generation no option but to turn guerilla or be executed? Extended the military control over part of the south past 12 years? To what? 20 years? 40?

                      Well let’s look at how well things went by being conciliatory: Power reverted to the same, or the ideologically same people who were in power before the war. The freedmen were terrorized and subjugated and became not much more than serfs, and the southern states resisted all Federal efforts to provide safeguards for the freed slaves.

                      The South was utterly defeated after the war and were not in a position to mount any effective guerrilla warfare. Even if they were they would have been crushed and many of the worst actors might have been removed from the scene. I don’t really care how resentful they were or would have been. Their insistence on perpetuating an evil institution created a catastrophe that we are still living with.

                    14. the relatively poor treatment of the South by the victorious North had many long term consequences, creating long term, generational animosities, that in part continue to this day.

                      This is just a part of Lost Cause mythology – that it was the evils of Reconstruction that led to long-term animosities. Pretty much nonsense. The so-called Redeemers overthrew Reconstruction, with help from Northerners who became more concerned about economic problems. The original crew of slavers and traitors pretty much took over.

              2. What about Lincoln being a Free Stater? That was seem at the time to be a pretty fundamental assault on the institution.

                1. Like I said, I didn’t claim Lincoln wasn’t opposed to slavery. I said that his highest priority was preserving/reassembling the Union, and that he was willing to lose on slavery to win on that.

                  He didn’t wage war to free the slaves, but he was happy enough to have that be a consequence of winning the war.

                  1. I don’t think we can know, really. Some contemporaries agreed with you, others did not.

                    I also don’t see why that question would matter. ML is doing his usual Lost Cause ‘the South was only fighting tyranny’ nonsense.

                    You’re just making unknowable academic assertions.

                    1. Unknowable except, you know, for public records and objective actions.

                      But, yeah, maybe he privately had the opposite priorities and inexplicably didn’t act on them or express them.

                    2. Good lord, Brett, the pride!

                      Your interpretation of the primary sources is not the only one.

                  2. I don’t think Lincoln was willing to lose on slavery. Professing to be willing to allow it to keep the Union was just a tactic to pacify the slave holding states that stayed in the Union. The seceding states understood that full well. The sentiment against slavery had moved to the point where compromising was over except as a temporary tactical consideration.

              3. the Emancipation Proclamation only “emancipated” slaves in territory the Union had no control over.

                Well, territory that was not part of the Union. There was definitely Confederate territory the Union controlled militarily, and in that territory slaves were certainly freed.

                Besides, if you want to determine Lincoln’s attitude toward slavery you might want to read the last paragraph you quote.

              4. No, as ML notes, the Emancipation Proclamation only “emancipated” slaves in territory the Union had no control over. Slave states that didn’t secede were excluded. Purely a propaganda effort as part of the war, it didn’t free anybody.

                There’s nobody except neoconfederates buying this shtick, Brett. He did what he could. Slave states that didn’t secede were excluded because they and to be; he had no power to free slaves generally. He could do so only as a wartime measure. But everyone who heard of the Emancipation Proclamation understood what it was and what it meant. It did indeed free people. Every slave that escaped behind union lines. Every bit of land captured. And he was eager to do it.

                I’m not saying that Lincoln didn’t have a general opposition to slavery. But the Greeley letter is the real deal.

                It’s not a forgery, but, no, it’s not what he wanted. The claim that he prioritized the union over ending slavery completely misunderstand context; he, like many, believed that slavery and the union were incompatible, and that preserving the union would lead to the end of slavery.

                Lincoln favored what was then called colonization, but unlike some, he favored voluntary colonization. Not Trumpian deportations.

                1. The claim that Lincoln’s true intentions were hidden and different from his words and actions is just nonsense revisionism.

                  Did he believe that slavery was incompatible with the union in the long run? Sure, but slavery’s demise was inevitable either way. Lincoln was indisputably willing to prolong the existence of slavery in order to “preserve the union” i.e. to retain power and control and money.

        2. Sea to shining sea. The goal of Manifest Destiny was a country protected by oceans and a desert to the south. Why is that?? See France/Germany border for your answer. 😉

          1. Major oversight not to take Canada.

  2. Anyway, not to get diverted, but secessions typically are followed by an episode of foot voting; For example, after the American revolutionary war, there was quite a bit of traffic between America and Canada.

    After the secession, the minority in the sections of the former nation sort themselves out, each moving to the new country they find more amenable.

    1. BB — I mostly agree. But as much as I often like Prof. Somin’s use of the term “foot-voting”, I wouldn’t apply it to the “traffic” between America and Canada after the War. It would be a euphemism. Yes, there was a ‘sorting.’ My ancestry includes fathers who died for the secession side, and brothers who died for the loyalist side. The latter side of the family were distinctly unwelcome in New Jersey after the war, and when they were offered land in Canada, they quickly accepted it. But since they weren’t offered any right to vote in Upper Canada, the ‘voting’ part of the ‘foot voting’ metaphor doesn’t quite apply.

      1. Sure, but that was in the context of a war, and, of course, while Canada was also a British colony, it wasn’t the same British colony.

        It would be my expectation that, were the US to break up, at least without a civil war, the “sorting” would be a bit more peaceful.

    2. but secessions typically are followed by an episode of foot voting;

      Well, in the case of the Civil War I doubt that many of those unhappy with their conditions in the South would have been able to “foot-vote.”

      Indeed, wasn’t the lack of enforcement of the Fugitive Slave Acts, intended to prevent foot-voting, one thing the South was angry about?

  3. As Max Weber defined it, a state is an organization that claims a monopoly over the legitimate use of violence within a particular geographic jurisdiction.

    I say smaller is necessarily better in the long run. In a particular place and time, it may be that a smaller state would be more unjust and repressive compared to a larger state that included the same area. But as those structures persist, a larger state is nothing but a larger magnet for eventual abuse in the exercise of its power. And because the state is based on violence and force, it is an evil right of the bat. Nearly everyone agrees it’s a necessary evil at some level, but you need to clear a high initial bar to justify that as to any particular government structure and the larger your state is the higher that bar.

    To a large degree the US has been operating as the head of a global state, exploding people around the world wherever its decrees are not followed. This is where we can see most clearly that attempting to force liberty and freedom on people just doesn’t tend to work out very well. That’s in the best case of good intentions. In reality, while these high minded justifications are always proffered for the consolidation and expansion of power in a large centralized state, they are more of a pretense for imperialism, conquest, mass murder, and the same ancient forms of tyranny that have persisted throughout human history.

    1. As Max Weber defined it, the US isn’t a “state”. Though there are always efforts to turn it into one that would fit his definition.

      1. It seems to me that the defining characteristic of government is that it can take your property and imprison you and kill you if you don’t do what it says.

        1. Sure, but the US government doesn’t assert a monopoly over the legitimate use of force. Maybe a monopoly over legitimizing force, but it recognizes a private right to violence in self defense and defense of others, and as a theoretical, and occasionally more than theoretical matter, even a right to self defense against the government’s own agents.

          Not a reluctantly extended privilege, a genuine right.

          Max Weber describes one conception of the state, and probably a good description of how most of the world understands it, but it’s not a description of the state as it is known in America.

          1. I don’t think self defense is incompatible with Weber’s account, but federalism and popular sovereignty are probably. I’m just saying it seems he loosely hit on a good point, in that the defining characteristic of government is force, ultimately based on violence and the threat of violence. Even with consent of the governed, and even where government action is just and fair, this seems to hold up. “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

            1. I think Proudhon’s formulation was more to the point. In practice that “next place” always seems to be optional, and fail aside in the end.

              1. Good one.

                Either way, as a general matter, smaller governments (geographically speaking) are the only ones that stand a plausible chance of being representative of their constituents, of being premised on consent, and of carrying out something that could be called self-governance.

                As a particular matter, to the problems that ail America, there is absolutely no solution obtainable by business as usual, i.e. voting for the right Democrats or Republicans (whichever you prefer) to go to D.C.

  4. We’re not yet in the promised land, but we’ve come a long way since the time when views such as Lincoln expressed in this letter were widely regarded as admirable.

  5. We cannot use the secession of the slave states in 1861 as a model for any secession analysis. It should be obvious why not: it makes black people invisible (pretty much like they are here at the VC).

    1. It’s generally used as a model by people who oppose secession, actually.

      1. No, it’s used as a legal precedent by those who oppose it.

        Those in favor of it? The overlap between those for secession these days and Lost Cause nutters is nontrivial.

        1. What is the legal precedent you are referring to?

          1. When people argue that the Constitution recognizes a right to secede, the Civil War is a pretty good precedent that nope.

            1. In much the same way as, when people argue that they have a right to refuse sex, rape is a pretty good precedent that nope.

              The problem with using the Civil war as precedent is that winning an argument by killing people doesn’t actually change anybody’s mind, and people stop agreeing with you as soon as they stop believing you’ll kill them if they don’t.

              1. The problem with using the Civil War as precedent is that there was no legitimate moral basis for secession to begin with.

                1. But it wasn’t resolved on the basis of who had the better legitimate moral basis. It was resolved on a “who’s better at killing” basis. And that’s why I object to it as precedent.

              2. Secession != sex.
                Countries (or pseudo-countries) != individuals.
                Check out Johnson v. M’Intosh. Brutal, but still precedent today.

                Like it or not, the Civil War cemented the Union as indivisible. Maybe not forever, but it’s been the current assumption since reconstruction.

                1. Sarcastro, The war is not a “legal precedent.” Say the mafia stops by your shop and demands protection money, you refuse, so they break your legs. Next time you pay them. That is as much a legal precedent.

                  1. Good lord, ML. I cited a case, even.

                    You’d think someone of your philosophical proclivities would understand the interweaving of force and law.

                2. “Like it or not, the Civil War cemented the Union as indivisible.”

                  Right up until people want to leave, and don’t believe you’ll kill them if they try. Bloodshed is a glue that stops sticking as soon as it isn’t fresh.

                  1. Oh, I don’t know that a functional argument is the way you want to go. Because it’s worked so far, and as you admit there’s no functional way for secession to work anyhow.

                    I get that you don’t like where America is and would like radical change like secession, and radicals on both the left and the right agree with you.

                    The right tend to be the more pro-Confederacy folks which delightfully undercuts their arguments. You’ve largely avoided that trap, at least.

                    But luckily (IMO), both sides of y’all remain a loud minority.

        2. I think its both.

          Its used as a quasilegal justification against something like California or Texas threatening to “file” for secession.* Its also used as an example as to why secession is morally bad. At least as an example of how it is potentially morally bad.

          Personally, I think in a place like the US secession is bad because we have a much better option written for us: Federalism. Federalism, properly executed (perhaps with some state secession like West Virginia once did), would give most of the benefits with almost none of the downsides. However, American federalism runs into another American problem: Puritanism, “the haunting fear that someone, somewhere, may be happy,” (although that problem has colonized many places now). Modern puritans can’t stand the idea that someone might be smoking pot or enjoying a 10% marginal tax rate.

          *AFAIK those two are the only currently nonlaughable versions of a secession plan. Losing the whole west coast would be a nonstarter so the Tri-State plan would be rejected, and Florida is too old? Maybe there is a theoretical New England plan I am unaware of?

          1. “Personally, I think in a place like the US secession is bad because we have a much better option written for us: Federalism.”

            People are talking about secession precisely because federalism is nearly dead. The left thinks nothing of imposing mandates on the most of the country that rejects their rule, and yet, on those topics where they’re a minority demands some kind of “home rule” even on topics that are explicitly constitutionally mandated.

            The reason secession in a US context is bad, is because the split in the US isn’t on the state level, it’s between areas of high and low population density. The divide runs through every single state. So there’s no feasible simple border to divide things along.

            Even if you did somehow sort things out, the division would recreate itself with the next generation, because urban and non-urban people live different lives.

            1. This is true.

              Even if the nation could be thus split, the lower density country would be virtually all white, and based on what we’ve seen of their attitudes and politics, nonwhites would not fare well there.

            2. If every State largely governed its own affairs, then government on the whole would be vastly more representative, vastly more in accordance with the consent and preferences of the governed.

              1. Yes, you have in the past specifically endorsed the America of 1859.

                Helluva choice there.

                1. Which states do you think would legalize slavery today?

                  1. I don’t think a federal government that gives them the option is a moral thing to advocate for.

                    1. Well, I didn’t advocate for any such thing. I did mention the levels of federal spending in 1859 compared to today. Now here you are. Your lies or inadvertent falsities are getting worse.

          2. ” I think in a place like the US secession is bad because we have a much better option written for us: Federalism.”

            But we don’t have that option and haven’t for a long time. There is no chance of restoring federalism, or fixing any of America’s major problems, simply by voting harder for politicians in D.C.

            Very good point about Puritanism.

      2. It should not be.

  6. I wish that Frank Buckley would quite falling back on the the British North Act (BNA) , and the Canadian court’s interpretation of it. (I’ve been following this argument in other fora). I get the idea that the BNA employs the legal fiction of absolute monarchy, and the centralization which follows, while the court, working within the framework of an unwritten British Constitution, understood the role of parliaments, local authorities, etc., and thus Canada, at least for a time, was a Confederation of Provinces, and a relatively weak federal government, as compared to the US.
    And of course the end result is that Frank Buckley is proud not to be an ‘originalist’ — because the Canadian high court got it right, in the face of an act which was couched in terms of legal fiction. But I believe most of us here in the US don’t assume that our constitution is intended as a legal fiction. And don’t expect the Canadian experience has that much to say to us.

  7. “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.”

    I don’t know whether this is true, but if it were, wouldn’t it be a strong point in favor of secession? If cramming a bunch of enthnicities together in a superstate creates a powder keg of racial and ethnic hostility, isn’t it best to split them up before the explosion? It seems by not following your logic to its conclusion you end at a point where another Armenian genocide, or Kosovo is inevitable, but you’ve cut out democratic secession as a release valve.

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