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

Secession – in America, and America: Part Two

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

Part One addressed general critiques about secession around the world; here, America.

5. America is Different. . .

We might agree Spain’s been heavy-handed, and what’s happening in Cameroon is disturbing. But this is America! Secession might work somewhere else, not in this nation forged by a struggle against secession. We’ve foreclosed that option.

If my argument doesn’t work here, that’s an important challenge. Every country is its own America: The international arena is a concatenation of domestic contexts, each as particular and as fraught. But territorial norms are general, and each state operates in their shadow. So a secession norm has to be applicable – if not applied – in each society, according to its own history and understanding. (Like democracy – which secession, rightly understood, is an exercise of.) That’s the challenge my general argument presents, and a very uncomfortable one it is.

I agree with Nicoletti (and Lind) that secession’s a non-question in America. What makes it marginal is not Texas v. White; it’s our historically informed present – the success of sustained, sometimes violent processes that produced a national identity. The brutish means by which it was created are neither here nor there; the identity is genuine.

But my model doesn’t require secession, only the option. (I wouldn’t vote for it, though my patriotism skews Californian.) If Americans wouldn’t exercise it because they identify with their country’s ideals, that’s a true and useful fact.

The question is whether a right of secession would undo all that, provoking new fractures that, in turn (per Balkin) would necessitate a new round of brutishness. Unwise to fix an unbroken thing: We shouldn’t casually tinker with the machinery – but I’m leery of arguments that counsel paralysis in response to challenges.

I detect a tautology, one I’m familiar with from international policy in the Balkans: as long as things are unstable, we can’t question borders; but once things stabilize, we mustn’t risk shaking them up. If America’s identity is so brittle that the mere possibility of exit would rip the country apart, perhaps the path, however dependent, is less fixed that it appears.

The thing I doubt is not that defeating the South created the space for a national identity (empirical and true) but that therefore we should not allow secession as an option today (normative and questionable). If we have really succeeded in creating a national identity, we should be able to relax that particular grip without coming to pieces. Better, always, to persuade than insist.

Path dependency can powerfully explain who we are and how we got here – even predict where we are likely to go. Less useful, however, for justifying our choices, where we have them. It risks justifying inaction. Secession and slavery are linked in America’s imagination – and divorcing the idea of secession from its incidental association with slavery is precisely what we should do, as an act of intellectual integrity and political emancipation. Not only for ourselves: There is an entire world whose histories don’t have an American valence; we should not impose it on them.

6. And Exceptional

Unless, tragically, we need to. Perhaps on Realpolitik grounds, America can’t allow secession, and rules have nothing to do with it. The gravest objection is Balkin’s comment, passim, that his realist take and my normative argument have nothing to do with each other. Hardly: If he’s correct, it’s a serious objection to my proposal, because we shouldn’t encourage the impossible, or even the predictably disastrous, just because it might be ‘right.’

Buckley outed himself as a unionist; I’m a realist, by inclination and training – a rare thing among international lawyers. I consciously structured my book as much around international relations as international law – not the idealist, institutional end, but the other, darker pole. I haven’t paid my dues to the New Haven School. There’s a lot of Wilson in my book, but even more doubts about him. Lots of E.H. Carr, without the doubt.

I’d be dismayed to encounter someone who didn’t think secession was about power politics. And not just secession: nobody should get a JD, or a degree in human rights, without reading the Melian Dialogue. Unless one is writing ideal theory – as I clearly am not – one has to keep power in mind, including law’s marginal relationship to it.

There’s not much law in Balkin’s argument; for a constitutional scholar, he’s surprisingly focused on nuclear weapons. But his realism is overwrought. It’s simply not true that geopolitics yields such rigid conclusions, and his examples demonstrate it.

Balkin quotes Lincoln’s First Inaugural on the impossibility of dividing, since that would lead to endless frontier war. The American death toll that followed has yet to be matched by all of our subsequent adventures. Well, things could have been worse, but it reminds me of another exercise in overdetermined realism from one of those adventures: how in Vietnam we ‘had to destroy the city to save it.’ (And we’ve been dividing the continent peaceably – with Canada.)

Hegemons can face secession challenges and give in. The Soviet Union collapsed in a (surprisingly) peaceful process; that risked instant proliferation of nuclear weapons, which the US successfully managed. It’s plausible to imagine something similar in a break-up here – Pacifica agreeing to surrender nuclear control to the remainder US (which has long positioned weapons on allies’ territory).

Geopolitics explains only so much. Countries like Canada and the UK don’t tolerate secession only because they are junior partners in America’s security architecture; their decisions are shaped by the kinds of politics Nicoletti and Lind describe. The almost mathematical certainty of Balkin’s scenarios – with the leaden inevitability of an alternate history – suggests what the analysis is: a mechanistic, deracinated realism that forgets realism’s lesson.

Realism, properly understood, asks how to operate in a world of power to achieve something you want. Read the last chapter of The Prince. Levinson catches this sense, noting how “[o]stensibly hard-headed ‘realists’ who disdain the possibility of secession may in fact end up imposing significantly more costs. . .than might be true of adherents of what might seem to be more ‘idealist’ and theory-laden support for self-determination.”

During the East Pakistan crisis, Kissinger believed supporting Pakistan was essential. The master realist lost himself in the chess game: independent Bangladesh is just one more piece, not the end game of anything. But believing it was, the US supplied arms to Pakistan while it perpetrated perhaps the largest slaughter since WWII. I’ll leave it to each reader to decide if that was right; it certainly wasn’t necessary.

For all the pseudo-certainty, secession crises occur because populations are alienated, so a better question is how to prepare for them. (For example, should constitutions acknowledge the possibility or remain silent, which Tom Ginsburg has discussed). What isn’t practical is to do nothing. As Carr – not exactly an idealist – cautioned: “the defence of the status quo is not a policy which can be lastingly successful. . . To establish methods of peaceful change is therefore the fundamental problem of international morality and of international politics”[1]

My book is concerned with what our global order ought to be. And for that reason concerned with what it is – and not interested in ideal theories unresponsive to the Thucydidean strains in our nature. But billiard-ball geopolitics not only lacks nuance, it lacks any theory of the relationship between power and law. It misunderstands realism and my book to suppose that what law ought to be is a question divorced from what power is. That truth practically swallows international law whole, but it matters inside states too: Constitutions aren’t simply maps of power – they seek to shape power. Good ones don’t ignore what happened to Melos, but no one would use the Melian Dialogue as their constitution – at least, if you did, why would you bother to write it down?

Good ones never forget what happened to Athens either.

American Secessionism

Still, I take Balkin’s concerns seriously – I need to argue the normative value of secession and its political feasibility. What prospects are there for secession in a world the US still dominates?

A hegemonic America might not tolerate secessionist threats to its power, but that’s not the same as opposing all secession. A hegemon might find advantage in secession, especially since the non-intervention norm has been degrading. The US might actively reshape the global order to promote secession abroad, while exempting itself.

The US regularly reserves for itself an asymmetrical role in the global architecture: the P-5, weighted votes in international institutions. It negotiates major treaties (UNCLOS, VCLT, ICC) without ratifying them or subjecting itself to their rules. Exempting itself from global norms might look like hypocrisy, but it’s a hegemon’s normal behavior; Britain did it in the 19^th century. It’s Schmittianism: “sovereign is he who decides on the exception.”

And therefore fitted nicely to American exceptionalism. The US has often promoted different values abroad from those it defends at home. Secession rights could be part of a revivified Washington consensus – distinguishing American democracy promotion from the brutalism of China and Russia.

Exempting the US would be no great loss, since secession is unlikely here. And in exchange for an American exception – American leadership – we could make progress towards a practice that would actually be better for many people in many places. A rule promoted by American primacy and reflecting American interests and values (even if not applied to itself) sounds like a better, and possible, world.

Relevance and Realism

I might be wrong. Like most people attracted to a philosophically conservative view, I assume people are often wrong, and who do I think I am, Martin Luther? Disproving my claim would at least put the unexamined assumptions of the current system to the test. The answers I have seen – in the literature, in the minds and mouths of actors who matter – tell me that test is yet to be made.

But I’m less worried about being wrong than irrelevant – ‘academic,’ as Levinson worries some might think. I wouldn’t be the first academic to succumb to fantasies of relevance, convinced his new Thomistic synthesis is what Davos needs to hear. But this goes to the heart of the question, because it seems not merely my idea, but any idea of secession is fatally unrealistic.

What troubles me about otherwise sensible path-dependence or geopolitics – almost as much as Buckley’s regressions – is the fixity of them, the aroma they exude of Laws Universal instead of dynamic human politics. When I see how comprehensively critiques of secession conflate prediction with preference – it won’t work and union is preferable – I wonder about the fixity, and truth, of the former. It cannot be that secession cannot be. That’s not realistic, or realist.

And that is what my academic argument is very much engaged with, or rather against: the confident conclusion that secession isn’t possible – and, not un-coincidentally, shouldn’t be – is the real object of my attention. That is what needs reassessing.

I don’t deny the difficulty (you have only to look at the title of my chapter on how to achieve a right of secession). But mine isn’t some ideal theory’s state of nature or original position: My purpose is to ask how change might be possible from our present position, not an illusory fresh start.

My book is theoretical, but not without regard for the dangers of the world. It is general, and grounded in how politics actually work. Thus the large section examining the mistaken assumptions (idealist and realist) of our present way of doing things.

If two books as profoundly different as mine and Buckley’s are both academic, I wonder if it is the idea of practical secession that is thought irrelevant (and, let us whisper in parentheses, undesirable). Well, that’s the very thing my book aims at – generally, abstractly, theoretically, yes, but on this question, that may be of the highest relevance.

Timothy William Waters is professor at Indiana University Maurer School of Law. tiwaters@indiana.edu.

[1] Carr, The Twenty Years’ Crisis, p. 222.

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