Balkinization: Secession – in America, and America: Part One

Secession – in America, and America: Part One

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).

Timothy William Waters

As Socrates said, “I only know general things.”[1] Boxing Pandora’s argument is general. But if it works, it should work for America too – at least for a world with America in it.

If the world were America, my book would be very different; I might not even have bothered. But the world’s more, the problem Boxing Pandora addresses is real, and the reasons it is have something to do with a global order which America, more than any other country, has shaped. Even if secession isn’t fit or wise for this country, it’s worth considering what America’s role might be in shaping a solution to what most assuredly is a problem for the much of the world.

I’m gratified by the thoughtful engagement in this symposium. For scholars who disagree with my thesis to take it seriously is a high compliment. I see six themes across their critiques – two about practical outcomes, two about history and process, and two about America. Namely:

* secession makes things worse, and other things work better;

* peoples are historical, and customs preferable to rules; and

* secession can’t work in America, and America won’t tolerate secession in the world.

I’ll deal with the four general critiques in Part One, the two about America in Part Two. Several of them depend on curiously static assumptions – fixities, the interrogation of which is the point of Boxing Pandora. That’s a theoretical purpose – but not ideal theory: I am consciously making a normative argument in light of realist assumptions about power and law.

The reviewers are thoughtful, their views serious. So I’ll end with a suggestion of how, if they’re right, an exceptional America, in which secession is neither possible nor desirable, might nonetheless contribute to a practical right of secession.

1. Worse. . .

Does secession make things worse? What if new states enact bad laws, or oppress new minorities? What if the mere possibility of secession makes minorities threaten exit to blackmail the state?

Some things only look worse. The ‘undeserved concessions’ Tsai worries about are the politics any sensible theory of secession should count on. (Coase might agree.) After all, what is ‘undeserved’? Why would we assume things are deservedly distributed in the existing state? This objection sounds less empirical than normative: its ‘efficiencies’ only make sense if you assuming the existing state.

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.)

2. And Better

Even if secession doesn’t make things worse, don’t other tools work better? Why secession, when federalism and voting with your feet don’t break up the state?

We needn’t prefer secession. They aren’t mutually exclusive; a state can offer minority rights and allow secession. But secession has a unique feature: Other tools ameliorate the problem of being in someone else’s state; secession allows a community to take on the role of a state – subsidiarity at the system level.

Other tools don’t magically operate – they are domestic political bargains, made in particular circumstances and in the shadow of global norms. The deal’s predictably less good for minorities because the bargaining’s done in a locked unit. A key insight of Boxing Pandora – one that follows from negotiations and game theory – is that communities make better bargains if they can exit. Secession isn’t just about leaving, but about better deals for staying.

It’s true a right of secession increases the chance of secession. For some, this is a harm, because we should prefer ‘voice’ to exit, but that’s a false choice. Allowing exit creates incentives for states to give communities ‘voice’ so that they won’t leave. Besides, while states should give citizens greater voice, making that shared voice a moral good precludes the very question at issue: Ought this be a people?

‘Voice’ is ironic, because behind many objections to secession is an unvoiced assumption: Breaking up the state is failure, a bad thing. But there is nothing inherently good about the states we happen to have; they are even less likely to be good if their own people don’t want them.

3. A People isn’t an Election: The Uses of History

And who are those people? Boxing Pandora relies on referenda to identify and justify new states – a thin, procedural liberalism that ignores the thick, historical drivers of belonging and identity.

Lind worries I’m in thrall to social constructivists. But I agree with him (and Nicoletti) that identities form by historical processes. They’re sticky – constructed, but not just as we please. (That’s Renan’s point: historical foundations and the need to affirm them. It’s history and the plebiscite.)

The problem is not how a people comes to be, but how we respond to it in politics. (It’s a classic risk for the social sciences – how to move from description to prescription.) Identities form in historically grounded ways, but if some group says ‘we wish to form a state,’ the practical response isn’t ‘No you don’t because you aren’t historically situated.’ That’s like asking what’s the matter with Kansas; you may wonder why people vote against their interests, but you count their votes.

That’s why I advocate a thin model – I believe in the rootedness of identity, but observe that there’s no agreement on these things. Reasons matter, and reasons given publicly matter even more. Kurds claiming statehood based on blood would elicit one response; based on ballots, quite another.

My model doesn’t “ban[] as illegitimate any acknowledgement of objective criteria of membership. . .and any appeals based on historical grievances” (Lind). The reasons people choose independence will be precisely those kinds of things. Thick identity is allowed – expected; just not required. Groups can communicate their desires through a clear vote on a clear question. (Catalan separatists have been quite disciplined in making territorial arguments that leave out speakers in Valencia, the Balearics, Andorra and France. They’re nationalists, not idiots.)

A people is more than an ephemeral numerical majority – but the way to show that is not to bang on about one’s blood or Spartanness, but to win elections. Voting is a mere moment, but everything that really matters – the blood and history and money and pettiness and principle that engender identity and desires – are present in the politics, the debate and the decision that moment represents. We have no better.

My argument is strategic, and Lind has discovered my intended audience: not secessionists (who typically love me), but governments, policymakers and intellectuals in that North Atlantic world so suspicious of them. They’re the ones who need convincing.

4. And Historical Custom is Better than Liberal Rules

Boxing Pandora proposes a new rule – a new right. Tsai, Nicoletti, and Lind prefer tradition, socially and historically grounded customs, thick with meaning, over thin liberalism and codified, formal rights.

I agree. Law works better when it reflects and arises out of pre-existing social understandings – when it “recognizes rights” (Tsai) rather than conjuring them. I’d prefer custom over codification. The problem is, we already codified the rules in 1945. The norms and practices of territorial integrity produce a bleak negotiating field for communities locked inside states. That isn’t the natural order – it’s an artifact of a particular, quite recent design choice.

Similarly, I’d prefer to entrench a practice of secession without the rigid language of rights. But we already have a human rights regime – the other half of the bargain struck in 1945 – and it’s the least implausible tool for making an explicit break with existing norms and practice. (That’s precisely what rights are good at.)

The alternative to legal rights isn’t some genteel realm of custom and informed tradition. I reach for ‘rules’ because the alternatives – Tsai’s “shows of strength” and Balkin’s unmediated Melianism – are so brutal. De facto practice and local traditions are formulae for suppression: Most states have territorial integrity norms, explicit or implicit, so the domestic machinery yields a predictable answer. In fact, as Spain shows, it makes things worse, because unionists righteously point to legality as a reason to resist, even though the legal order is the very thing being contested.

The rules need to be thin because identities are thick. Lind wants a more useful guide to “to how to think about the difficult relationship of ethnocultural nations to territorial states in the contemporary world.” Me too. Someone should write it.

In Part Two, we’ll turn to America.

Waters is professor at Indiana University Maurer School of Law. You can reach him by e-mail at tiwaters@indiana.edu.

[1] Steve Martin, “The Death of Socrates,” Comedy is Not Pretty (NBC: 14 February 1980), https://www.youtube.com/watch?v=RVc8jwYexjE.

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