Balkinization: Shall We Break Up?

Shall We Break Up?

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).

Robert Tsai

In American Secession, F.H. Buckley has written a slim and breezy volume that pleads for recognition of the right to secede based on the compact theory of the U.S. Constitution and, bowing to the low prospects of that happening anytime soon, presents a menu of second-best solutions that might capture the spirit of secession without all of its pain. It’s a fun and quick read. The author is well read and jocular. Yet Buckley’s approach to the Constitution’s text and history is too cursory to be sound, and he glides over too many of the hardest normative questions raised by a right for people to exit a political community and take the marbles with them.

He repeatedly asserts that “the constitutional originalist must . . . conclude that the states had a right to secede” as if the answer is plain. But the answer isn’t obvious. Buckley doesn’t adequately grapple with the text of the Constitution, which neither establishes a right to secede nor prohibits it explicitly. Yet it does expressly change the terms of political community, as well as its foundations. It does so by dropping the Article of Confederation’s language of “confederation” and the more strident rhetoric of state “sovereignty”—along with the power of a single state to stop a constitutional amendment dead in its tracks—in favor of “the people of the United States” forming a new government based entirely on a new formula that gives no such veto power to any single state.

These changes, as Bruce Ackerman, Akhil Amar, and many others have pointed out, reflect a powerful rejection of the compact theory as the basis for self-rule in favor of an account of sovereignty grounded in the “people of the several states.” The states retain form and authority, but they have been dethroned in our political theory as the genesis of sovereignty—it rests in the hands of the people themselves. At least that’s what the Constitution seems to say and the Framers’s own example demonstrates. Of course, it’s a separate question entirely how many people remember or accept this move, and for that matter, what lessons later generations might draw from this precedent.

But changing the rules collectively once doesn’t mean that just anyone can change the rules again—or more importantly, that one segment of the citizens can do so through unilateral action. In fact, a self-executing right of secession would have greatly alarmed most of the Framers, particularly the Federalists driving the project of renewal, given their general mission to strengthen federal power as the primary method of enhancing “a firm union.” It would also have worsened the problems of faction with which they were intensely occupied if a single state could rattle its saber and threaten to dissolve the union or depart every time it disagreed with a piece of legislation or a president’s order.

Now, Buckley cites Federalist No. 43 as if it unquestionably settles the matter, but of course that pamphlet did no such thing. Toward the end of that essay, Madison takes up the issue of why the “Confederation . . . can be superseded without the unanimous consent” the states. He invokes the nature of a “compact between independent sovereigns,” which, according to well-established treaty principles, allows a party to it to claim that the agreement has been “violated and void.” That’s correct given the original terms of who entered into that agreement. Behind that contract principle, of course, is the deeper right of self-governance rooted in natural law. But Madison nowhere asserts that if the Constitution were approved based on the new theory of self-governance, a single state or even a few disgruntled states, can dissolve it.

Indeed, Madison insists, in a letter dated January 1, 1833 to Alexander Rives, that “a rightful secession requires the consent of the others, or an abuse of the compact.” The idea that “a single State has a right to seceded, at will from the rest . . . would not, till of late, have been palatable anywhere.” Even if secession could be done, it would have be accomplished “without injustice or injury to the Community.” Think of the “consequences,” including the dismemberment of territory. An individual expatriate could not, for instance, “withdraw his portion of territory from the common domain.”

In my own writings, I have investigated how arguments about repudiation, withdrawal, and other forms of self-organization derive from the language and rhythms of popular sovereignty deployed by the Revolutionary generation. Claims concerning a right of secession are certainly a part of that tradition. One of the best recent treatments in this vein is Cynthia Nicoletti’s Secession on Trial, but more on that in a minute. The point I want to stress for now is that it is possible both that the original constitutional basis for nullification, interposition, or secession is relatively weak (Buckley writes approvingly of all three), and that Americans have still occasionally asserted that such extraordinary remedies exist. The fact that some non-trivial number of citizens continue to believe that secession is a legitimate solution for unhappiness is some evidence supporting that right, but it’s not an originalist argument (at least not one claiming to know the Framers’ intentions or the public meaning of particular clauses); rather, it’s a very different argument based in some theory of popular sovereignty.

It’s possible to make this kind of argument, of course, but it’s incredibly tricky to do so. To really put your shoulder into it, you’d have to entertain the possibility that the substance of the Constitution isn’t just a matter of fidelity to the exact words inscribed in 1787 or 1868. Text doesn’t so much bind; it inspires. Instead, constitutional meaning has largely always been, or at least in key respects today has become, a product of some more intricate, though unruly, process through which fundamental matters are contested. Coming up with a plausible account that authorizes popular defiance or drastic reorganization that doesn’t seem like a free-for-all is much harder than you think.

Buckley is right to point out that everyone from James Buchanan to Joseph Story believed that the Union was “perpetual” and could not be dissolved; Lincoln himself rejected the compact theory once the slaveholding states began to take their leave. Others, however, have taken a different view—most notably the fire-eaters who pushed their slave-dependent societies to cut their losses after Lincoln’s election, and based on a compact theory they never quite let go, to cut out. Buckley sides with the latter. Constitutional meaning isn’t just a matter of judges adding up all the people who think one way, and subtracting those who think another way.

Nicoletti’s painstaking take on the treason trial of Jefferson Davis does a better job of showing how a legal proceeding can be one way that a country attempts to work out an answer to such hard problems. What she demonstrates is that constitutional politics sometimes makes for strange bedfellows. In this instance, some Republicans cheered for Davis’s lawyers because they felt that a judicial ruling that secession was legal would strengthen the most stringent Reconstruction measures against “conquered provinces.” Finally, Nicoletti shows us that constitutional crises often yield unsatisfying answers that involve kicking the can down the road. Davis’s trial ends because he receives a pardon; the Supreme Court eventually takes Lincoln’s side of the debate in Texas v. White, but that hasn’t kept ex-Confederates, New Afrikans, contemporary white nationalists, or proponents of #CalExit from continuing to dream of self-liberation.

Since Buckley doesn’t spend much time defending the right to secede, it seems that he actually isn’t all that interested in inspiring new independent movements in America. It shows. At times, the dark threat of armed secession seems like a rhetorical ploy to get us to favor a devolution of political authority to states rather than justifying speedier exit. Because after he discusses secession, he moves into the heart of the book, which actually presents a case for why large political communities have more problems than smaller countries. Buckley contends that people who live in larger countries are less happy than those who live in smaller ones, that large republics experience more corruption, and that the representatives of small countries render policies that are more in line with the needs of the citizens.

Most of these arguments we’ve heard before, as they are the kinds of things that classical republicans and certainly the anti-federalists once said. There’s truth here, but it’s also worth noting that such arguments can prove too much: why not cities or counties or even smaller units rather than states? It’s the logical place that a number of secessionists, both old and new, have actually taken these arguments. Calhoun’s own theory of secession was initially based on the plantation as the most fundamental unit of society rather than the individual, the family, or the state. In the Northeast and the West, property-rights militants, armed ranchers, “constitutional sheriffs,” and others have argued that counties, single neighborhoods, and even certain collectives have the right to withdraw from the state or country.

It’s toward the end of American Secession that Buckley finally arrives at what he really wants to get off his chest: a proposal of “home rule” as “an exit option of sorts.” By then, he’s tried to reassure us that even secession today is “politically correct,” by which I take to mean that progressives and Democrats are open to it, just as social conservatives and many Republicans are. This is part of Buckley’s strategy of rescuing secession from its past association with slavery and opposition to civil rights, as well as from modern ethno-nationalist movements. It’s also a way of making states’ rights more palatable if it feels like the only way to avoid civil war.

What would home rule mean in America? Economically, it would allow each state to opt out of federal economic regulations. Buckley acknowledges that this could lead to “a race to the bottom in some ways,” with some states relaxing rules governing migrant labor or the environment, just as states once fell over each other to enact the most business-friendly laws when it came to workers’ rights. Buckley explicitly says that states should be able to “opt-out of national equalization programs,” but the part he doesn’t say out loud is that this would mean an effective reversal of the New Deal and Great Society, which represented major intergenerational achievements—not just social welfare programs, but also principles that have changed what it means to be Americans.

To his credit, he acknowledges that poverty would probably worsen in some places given parochial norms and preferences, and that no federal measure to reduce wealth inequality could then be effective to reverse widening inequality. He suggests that states that want to maintain such programs can continue to do so, and people can vote with their feet, but of course the most impoverished Americans would just be trapped where they are.

As for civil and constitutional rights, Buckley is totally comfortable with a state nullifying an interpretation of the federal Constitution that it doesn’t agree with, whether it has to do with religion, guns, abortion, or same-sex marriage. He doesn’t believe that much would change—which seems incredibly optimistic—but he also doesn’t take all that seriously the central question of what it means to be an American in such a world if one could no longer expect a bundle of constitutional rights, apart from the right to travel. What would keep us together if there was no longer a common notion of historical struggle, national mission, and coherent set of rights?

Robert L. Tsai is Professor of Law at American University. You can reach him by e-mail at rtsai@wcl.american.edu.

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