Will the United States survive the 2016 election (II)

Sandy Levinson

People may think I'm being my usual hyperbolic self in asking this question, but I suggest they may be somewhat myopic and overly addicted to a strange form of American exceptionalism.  As to the latter, one cannot overestimate the extent to which secession is as American as apple pie.  Our "revolution" was in fact a secession from the British Empire.  Our second largest state seceded from Mexico (and then, of course, with ten other states, attempted to secede from the United States in a struggle that ultimately cost 750,000 lives (for starters)).

And, finally, there is the phenomenon of secession all over the world, the most dramatic example of which is surely Brexit, to be followed, one suspects, in relatively short order by Scotland's repudiation of the Treaty of Union and its own declaration of independence,.  This may or not be accompanied by recognition of some kind of mystical sovereignty of HRH Queen Elizabeth, but, most certainly, not a scintilla of sovereignty in the London Parliament.  (That deal, incidentally, was on offer to King George by Benjamin Franklin and others, but he and his ministers were too stupid to accept it.)  So what is it that convinces all "thoughtful" people that secession could never happen here?

Consider, for starters, the following statement by Alexis deTocqueville:

“….what keeps large numbers of citizens subject to the same government is much less the rational determination to remain united than the instinctive and in some sense involuntary accord that results from similarity of feeling and likeness of opinion.”  Alexis de Tocqueville, 1 Democracy in America, part 2 2, chapter 10, pp. 430-431 (Library of America ed., trans. by Arthur Goldhammer, 2004).

This view can easily be linked to the insistence in Federalist #2 that divine Providence has blessed America with a population of similar manners, religion, anguage, and political views.  This was, of course, utterly preposterous.  However, as I argue in my book An Argument Open to All:  Reading the Federalist in the 21st Century, Publius (in this case Jay) thought it necessary to make such an assertion in order to persuade people that what was in fact a "consolidationist Constitution" made sense as a replacement for the Articles of Confederation.  I think that one can say with confidence that we have become ever-more multi-cultural, in all senses, since 1787, and it's ever-harder to find "similarity of feeling and likeness of opinion."

It is clear that Donald Trump's critics, the most eloquent of whom are Republican, as a matter of fact, see him basically as a dangerous sociopath (which is why they are publicly opposing him and , unlike the despicable Paul Ryan, maintaining their honor for 2020, when Hillary Clinton will be the most vulnerable incumbent since Herbert Hoover).  They are, of course, wholly correct.  And, in addition, he is receiving all-too-much support from out-and-out racists like Iowa Rep. Steven King (no relation, I assume, to the author) and the out-and-out fascistic Rudy Giuliani, who, had he only been wearing a suitable black shirt, could have been a solid ringer for Mussolini in his call for a strong-man who would do whatever it takes to save the country from the Schmittian "enemy."  So, if one tries to imagine Hillary conceding the election to Trump, I confess I can't come up with a plausible speech.  I would be truly outraged if she gave a typical "let's rally around the choice of the people" speech.  Instead, she should refer to Lockean rights of resistance to tyranny and perhaps even suggest that we remind ourselves of classical theories of tyrannicide.  Were I a resident of Pacifica or New England (as in fact I am during the fall), I would certainly wonder why in the world we should remain within a Union that would elect a dangerous sociopath as President and give him access to nuclear codes and rely on courageous members of the armed forces basically to rebel against their commander-in-chief.

No one watching the evening of hate at last night's Republican Convention could possibly believe that those people who honestly support Donald Trump and admire Rudy Giuliani will regard Hillary as a legitimate president should she win.  And given Trump's narcissism, it's impossible to imagine what his concession speech would look like.  Will he accept his status as a  LOSER to someone he regards, at least while performing his most recent role as "Donald Trump, candidate of the angry," as totally unfit to serve as President?  Isn't he likely to say that she won by a "rigged election," which by definition denies legitimacy to the result? (See, at least for a while, Bernie on this score.)

I take it that no one believes that the national vote, whatever it is, will be mirrored in each of the states.  There are the classic "battlegrounds" where perhaps the margin will be only 3-4 points.  I suspect that most of the states will have margins closer to 10 and perhaps even 15 points.  So why should the majorities who voted for the loser in those states really wish to stay in a Union that would elect someone they view as patently unfit to serve and a menace besides?  

My good friend and casebook co-editor Akhil Amar will no doubt remind me that secession is "unconstitutional."  Two quick responses:  He and I have quite different readings of the Constitution on this point.  I think the Constitution was and is silent on secession.  I don't view Lincoln's arguments as dispositive, which is different, incidentally, from simply saying that all things considered, on balance, they are more persuasive than those of the Southerners.  Nor do I share the view of my friends Paul Finkelman and Laurence Tribe that the issue was settled in the case of "Grant v. Lee" or by the Supreme Court's decision in Texas v White.  But let's stipulate that they're right on the law.  So what?  As Tocqueville suggests, it's ultimately not a legal question at all.  Perhaps this is why the Supreme Court, in In re Debs, suggested that it would have been foolish for Lincoln to have sought an injunction against Davis and his fellow secessionists.

As Scot Peterson informed us last week in his post on the aftermath of Brexit, Parliamentary power in England is ultimately a question of what the public will accept.  "Sovereignty" is ultimately a matter of social fact, not of abstract legal argument.  Recall Holmes's statement in The Path of the Law, which remains the most important single essay in the history of American constitutionalism:  " I once heard the late Professor Agassiz say that a German population would rise if you added two cents to the price of a glass of beer. A statute in such a case would be empty words, not because it was wrong, but because it could not be enforced." What is true of statutes is no less true of constitutions.  So the ultimate question is whether the rest of the United States would be willing to support killing the secessionists who were attempting to leave.  Legal arguments would be near irrelevant.

But, one might say, optimistically or not, that surely there is no serious secessionist sentiment in the United States today.  If that's true, then we are surely exceptional!  But consider a 2014 poll taken by Reuters, at the time of the secession vote in Scotland, that showed that 25% of the U.S. respondents favored their state's seceding from the U.S.  And, most interestingly, although only 16% of people my age seemed to think secession might be a good idea, 40% of those between 18-29 were receptive to the idea.  What might this say about the American future?  Will they grow out of it, or does this suggest that Millennials may simply not feel much of the tug of what Lincoln called the "mystic chords of memory"?  And, by the way, in the aftermath of Brexit, 37% of millennials supported Texas secession., which I think should be labeled "Texodus."   Doug Bandow, of the Cato Institute, who applauded Brexit, had earlier suggested that Brexit should set the stage for the breakup of what he regards as a far too large U.S.

No doubt there were some in 1860 who believed that the US would survive the election.  After all, he initially relied on the "mystic chords" before emulating King George by sending in the troops to "kill friends and family," in the words of Hamilton's version of King George.  Lincoln at least had the motivation, at least after 1863, of trying to end slavery.  What grand cause justifies the use of force against Pacifica or New England (including, presumably, New York)?  Should those chords really lead us to accept living in a country that would accept a dangerous sociopath like Donald Trump as its commander-in-chief?  Or should we look forward simply to demonstrating, marching on Washington, and perhaps even suggesting use of our Second Amendment rights to rebel against an oppressive government?

No doubt many people will talk about "individual secession," what our friend Ilya Somin calls "foot voting," whereby we could join Ruth Ginsburg in moving to New Zealand or the like.  But
why stop with individuals foot voting, which by definition requires a willingness to uproot one's life and perhaps go into exile?  What really and truly prevents Pacifica (or Dixie, or Texas) from saying, collectively, "we've had enough, and we want out.  Here's our 2017 version of the Declaration of Independence!"?

I'm opening this for comments, but let me make one thing clear:  I'm not in the least interested in what anyone actually thinks of Donald J. Trump or Hillary Rodham Clinton.  What I'm interested in is the analysis that is offered about the potential difficulty of their opponents treating their election as truly legitimate and meriting respectful obedience until the next election at which they would try to throw the rascals out.  Bernie, we know, is willing to live under a Clinton presidency, however unhappy that makes him.  And Paul Ryan is apparently willing to do the same with regard to a Trump presidency.  Do they really speak for America in general on this point?  (Of course, it is hard to get good data, since few American pollsters seem to be taking seriously the possibility of a genuine secessionist movement arising in the country.  Perhaps they would view asking such questions as the equivalent of trying to measure public support for a violent response to the election.)


Posted 5:02 PM by Sandy Levinson [link]