Balkinization: Review of Waters, Boxing Pandora

Review of Waters, Boxing Pandora

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).

F.H. Buckley

Timothy Waters has written what is probably the wittiest book Yale U.P. will publish this year, and remarkably it’s about the technical question of secession. The front half of the book, on the breakup of colonial empires is written for the legal historian, and as we had our own example of this in 1776 there’s no need to revisit it. Of greater interest is his discussion of modern secession movements in First World states, especially the example of Quebec separatism in the 1970s and 1990s and the Canadian Supreme Court’s Reference on the Canadian Clarity Act.[1]

The unanimous Canadian decision is the fons et origo of the modern secession question, at least for that country and our own. In the 1960s, Macleans Magazine had a cover story on a Quebec separatist, René Levesque, with the headline “Should this man be charged with sedition?” Ten years later, Levesque was the premier of the province whose voters were being asked to decide on secession in a referendum. That’s how fast these things can happen, and it might well happen here. So at least I argue in American Secession, for an overlarge country whose bitter divisions and separation of powers bid to make it ungovernable.

American Secession has been thought a constitutional impossibility since the Civil War and the U.S. Supreme Court decision in Texas v. White.[2] In that case, decided after the War was good and over, the Court held that the union was “perpetual,” as the 1781 Articles of Confederation had stipulated. But almost none of the Framers of our Constitution, at their 1787 Convention, thought that the Articles had survived, and if they were wrong then George Washington was illegally elected president in 1789, since every state had to agree before the Articles were amended and the last state to ratify the Constitution did so only in 1790. Besides, as James Madison told the delegates, if a state were invaded by the federal government, it would conclude that the compact amongst the states was at an end. Yet when my Alexandria VA was invaded in 1861, that was just what happened.

The Canadian example puts to rest the fear that secession might lead to armed conflict. English Quebecers were told, in the separatist government’s Bill 101, that their language would have a second-class status in the province. The Anglophones called it Bill 401. That’s the name of the highway between Montreal and Toronto, and after the separatists came to power in Quebec several hundred thousand English-speaking Quebecers simply moved to Ontario. So we’d not see a war if a U.S. state seceded. Instead, we’d simply see the kind of sorting of people that goes on today, for example between California and Texas.

Modernity has led to one other great change, as Waters notes. Today, democracy is seen as a grundnorm of constitutional government in Canada and in the U.S. That was how the Canadian Supreme Court saw how Quebec might possibly accede to independence.

The Constitution … embraces the entire global system of rules and principles which govern the exercise of constitutional authority. A superficial reading of selected provisions of the written constitutional enactment, without more, may be misleading. It is necessary to make a more profound investigation of the underlying principles animating the whole of the Constitution, including the principles of federalism, democracy, constitutionalism and the rule of law, and respect for minorities.

A solid vote in a clearly-worded secession referendum would reflect the democratically expressed wishes of the voters and could not be ignored. On the other hand, the votes of people in other states or provinces would matter too. While Waters speaks of a “right” of secession, the Canadian court held that no such thing exists. Instead, a successful secession referendum would simply initiate a series of negotiations about the division of federal assets, the assumption of the federal debt, the protection of minorities, free trade and related matters, a bundle of interconnected relationships that the Quebec separatists called “sovereignty-association.”

There is one other great change, between 1861 and today, on which Waters did not remark, and that is the expansion of the federal government. In 1861 the federal footprint was so small that Henry Adams thought that secession could happen easily. That’s not the case today, where so many Americans rely on the federal government for jobs, welfare payments, or simply as the ultimate guarantor of our security, as we discovered in the fallout from Hurricane Katrina in 2005.

But if that’s made the exit option more vexed, it’s also given states a greater incentive to go their own way and leave the union. With the expansive power of the federal government, we’ve lost much of the benefit of Tiebout sorting and jurisdictional competition which secession might bring back, as I note in chapter 11 of my book.

And now I must reveal myself to be a unionist and not a secessionist, for I voted against separatism in a Quebec referendum. I concede that people who live in countries organized on linguistic grounds might have a greater sense of unity, fellow-feeling and trust, but I was also happy to live in a bilingual country. I thought that Anglo Torontonians would benefit from a bit of French-Canadian joie de vivre and that it might do them good to be able to read Molière in the original. I also believed that francophones might be benefited with a knowledge of Shakespeare and even with a dose of Toronto’s dour rectitude. Civilization, I concluded, was an Anglo-French condominium, like Egypt under the Khedives.

I also think that clarity is overrated, that nothing is more dangerous than a sense of justified hatred, that differences are best settled over cases of rye whisky, and that Teilhard de Chardin was not altogether wrong when he wrote that everything that rises must converge.

F.H. Buckley is Foundation Professor at Scalia Law School at George Mason University. You can reach him by e-mail at fbuckley at gmu.edu.

[1] 1998] 2 SCR 217, 161 DLR (4th) 385.

[2] 74 U.S. 700 (1869).

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