Balkinization: Historical Path Dependency and Secession

Historical Path Dependency and Secession

Guest Blogger

For the Symposium on 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).

Cynthia Nicoletti

At the conclusion of Part I of American Secession, Frank Buckley declares that “it’s time to think seriously about Secession 2.0 as a possibility.” I have to confess: I don’t know whether to take that statement at face value. Is the argument of this book serious or not? At the very end of the book, Buckley reveals himself to be a Unionist, apparently, and the book is a merely a polemic or a thought exercise. We should take the possibility (threat?) of secession seriously in order to avoid it. If Americans thought that secession were a real possibility, they might be more willing to compromise with those who disagree with them politically. But is secession really on the horizon? There was a culture of threatening secession on the eve of the Civil War, which functioned for a good long while as a negotiating tactic in order to win many concessions for slavery. But secession is not part of the political discourse in today’s America, unless Buckley intends his book to spark such a conversation.

The idea of threatening secession in order to force a compromise strikes me as ill-advised. It’s certainly a counterintuitive strategy. In his first Inaugural Address, Abraham Lincoln compared our Union to a marriage, emphasizing that the disparate parts of the United States cannot separate. He argued that coexistence in an unbreakable Union invited compromise and that negotiating treaties across a national border did not. I agree with Lincoln on this point.

Buckley argues that the fairly recent ascendancy of Originalism would lead the Supreme Court to reject the precedent of Texas v. White and go back to what the founders said about secession. There are two problems with this argument on its face. First, I don’t believe that a majority of justices on the Supreme Court would blithely dismiss a precedent like Texas v. White. Yes, it is true that there is widespread adherence to Originalism on the right, and to some extent that adherence to the original meaning of the Constitution has led its proponents to toy with the idea of rejecting judicial precedents that deviate from the original understanding of constitutional text. But, even in those circles, the disruption of precedent is far more controversial than Originalism is. It’s one thing to decide new cases according to the original meaning of the Constitution. It’s entirely a different matter to advocate for overturning a case like Texas v. White on Originalist grounds.

Second, it’s not the case that secession accords with the original meaning of the Constitution. My own view is that the Union was formed first, and a well-reasoned understanding of what that Union signified came later. At the very least, there were certainly significant differences of opinion on secession question prior to the Civil War. What is more, Chief Justice Salmon P. Chase, the author of the Texas v. White opinion, framed his decision in terms that would resonate with Originalists. Chase argued that it was the Constitution itself and the terms of its adoption in 1787 that prohibited secession from the Union. He declined the opportunity to rule on the grounds that the war’s outcome had made a difference in answering the question, a possibility he had flirted with a year and a half earlier in a circuit court decision. And what, I wonder, would an Originalist make of the significance of the Reconstruction Amendments, all adopted in the aftermath of Union victory? As I have also argued elsewhere, the authors of the Fourteenth Amendment surely endorsed the idea of the Union’s permanence.

But I digress here. I’m not an Originalist; I’m a historian, and my historical expertise lies not so much in the parsing of judicial decisions but in the interaction of formal law with historical events – and in particular, with the cataclysmic reality of the Civil War. It’s this perspective that I really want to apply both to American Secession and to Boxing Pandora.

Both of these books led me to think about historical trajectories and how it is that certain possible options – in this case, a state’s ability to engage in unliteral secession – get foreclosed. I wrote a book that explored secession’s lingering post-Civil War career in the years immediately following Appomattox, but I only offered a very tentative analysis of how it is that secession eventually disappeared from political discourse in the United States and truly became foreclosed as a viable option. As I argued in my book, the nation wrestled with the question of whether the Civil War could truly provide a definitive answer to the secession question in the late 1860s. For a time, it seemed possible that Union victory could be undermined by a contradictory decision in a court of law. And as Buckley points out, the case that presented the greatest challenge in this regard was Confederate President Jefferson Davis’s treason prosecution.

The Supreme Court’s decision in Texas v. White provided a formal answer to the question in 1869, but at the time it was handed down, Chase’s opinion in the case was not really viewed as a neutral assessment of the logical premises undergirding secession. Instead, as many Court observers pointed out, it was a decision that was designed to ratify the outcome of the war and to ensure that the law matched social and political reality on the ground. Legal theorist John Codman Hurd insisted that the Court was obliged to obscure the fact that life rather than logic had guided the Court’s determination.

In time, as the opinion was read out of its immediate context, it served the purpose that Hurd had envisioned. It took on a life of its own once it was ensconced in the U.S. Reports, thus ensuring that the determination of the law had matched the verdict of the battlefield. Generations of Americans understood that the Civil War had determined the illegitimacy of secession, both legally and practically speaking. It had established the permanence of the federal Union.

In fact, it seems to me that the war’s success (as buttressed by Texas v. White) along this dimension has been so complete as to render it nearly invisible. The permanence of the Union has not been seriously questioned since 1865, despite the persistence of fringe arguments about the lack of persuasiveness of Chase’s opinion and the brutishness of settling serious constitutional questions through physical combat. We’ve taken the basic integrity of the United States for granted, and the idea of breaking the Union into disparate pieces has been relegated to the realm of the wacky. This was not so before 1860, when the discourse of disunion played a serious role in the American political sphere. Threats of secession and national reconfiguration were fairly routine, and they were not confined to the southern states.

Such threats evaporated after the conclusion of the Civil War, and a cultural sense of national belonging took hold. The removal of secession as a political and a constitutional possibility eventually cashed out in daily life as a palpable sense of assurance about the integrity of the American Union. The Civil War did its work so well in this regard that its effect became largely unnoticeable. It was simply a fact of life in the United States, one that Americans take for granted.

Contrast this, if you will, with the impact of the other major constitutional consequence of the Civil War: the destruction of slavery. The destruction of slavery seems real and tangible and worth the sacrifice of the many hundreds of thousands of lives that the Civil War consumed, in part because the victory over slavery seems incomplete still. We are still fighting this battle today, and so we do not forget what it took to achieve emancipation. This is not true of national integrity, which was also a product of the Civil War. It was similarly hard-won, but its triumph has been so complete that we hardly take note of it. It slides into our consciousness without any work or any reflection on our parts.

And so the story of secession in the United States is, like most historical stories, highly path dependent. Secession is a path that has been foreclosed by events of the past, such that its revival seems nearly impossible. It’s not an idea that can be divorced from its past association with slavery and the Confederacy in today’s America. The combustion of the Civil War and the historical settlement that was achieved in its aftermath on the secession question, tentative at first and then beyond dispute as time passed, foreclosed an option that might have once seemed viable. Buckley’s efforts notwithstanding, it doesn’t seem like American secession can be rehabilitated and repurposed as a solution for modern problems. The Civil War did its work too well, and we will just have to learn to live together.

This brings me, in a roundabout way, to Timothy Waters’s compelling book on secession in the international context. I have less skin in the game here, as I’m an American historian. But Waters’s Boxing Pandora also got me thinking about historical trajectories and how those are made – and perhaps unmade. A secession option like the one Waters advocates strikes me as more plausible in the international arena than in the domestic one. I’m also more convinced that it might be a good idea in that context. Indeed, it’s difficult to disagree that subsidiarity and self-determination would be strengthened by allowing secession under certain conditions, and the conditions that Waters sets forth seem reasonable.

Secession is far less freighted in the international arena than it is in the particular context of the United States. When discussed in the abstract, it’s untethered to the difficult political struggles of any state and thus freed of the baggage of any given conflict between groups of people. Divorced from the ugliness of the battle over slavery in the antebellum United States – or any other ugly political battle, secession is a neutral principle that allows a people the freedom to define (and to continue to redefine) itself as such.

The sticking point militating against secession, as Waters persuasively demonstrates, is the inertia of history and the stickiness of the national borders that had been put in place by the end of the Second World War in 1945. Waters points out that, by failing to recognize a right to secede from existing states, we have frozen political boundaries in time. At the time of the UN’s founding, the international community recognized the importance of self-determination and pledged to allow colonized peoples to throw off the rule of their colonizers, but it drew an artificial line in the sand and would not allow further political reconfiguration that might become desirable in the future. By failing to instantiate a rule granting a locality the ability to secede from a parent state, the architects of the international legal regime placed a higher value on stability than on self-determination. The right to relocate national borders would be only retrospective in nature, and international law would essentially ignore the inevitability of political churning and new demands for independence from unpredictable corners of the world.

Such a premise is untenable in the long-term, as Waters points out. Failure to recognize a legal right to secede would hardly forestall a serious breakaway movement. Law does not effectively erase people’s desires in this way, and it is foolhardy to presume that it could. Waters’s book, imaginatively conceived and energetically argued, prompted me to meditate on the degree to which law acts to constrain human behavior and to structure human consciousness. To what extent will people make their own geographic boundaries and compel the law to adapt to their demands? And to what extent do people adapt to the law’s arbitrary lines? I, like Waters, have lived in several different states and have formed attachments (in varying degrees) to all of them. We may chafe at borders, and yet borders shape our understanding of who we are.

The “dead hand” of foreclosed historical trajectories hangs over both Boxing Pandora and American Secession, albeit in very different ways. Waters argues for the importance of recognizing that history does not end just because the law compels it to do so. It is futile to attempt to stop cultural developments – or at least to forestall all future cultural developments – after an arbitrary end date. National and subnational attachments will form and loosen over time regardless of UN directives not to disrupt the integrity of national borders. Waters asks us to acknowledge this inevitability instead of turning a blind eye to the issue. On the other hand, Buckley seeks to revive a secession option that history has foreclosed in the United States. Modern American political culture is premised on the basic integrity of the Union. Because the future is always uncertain, it is possible but highly unlikely that secession could once again become a subject of serious discussion in the United States. Reviving it at 150 years’ remove from the Civil War would entail nothing less than wrenching the nation of off one historical path and on to another.

Cynthia Nicoletti is Class of 1966 Research Professor of Law and Professor of History at the

University of Virginia. Her email address is cln4x@virginia.edu.

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