Balkinization  

Tuesday, September 02, 2008

More on double standards

Sandy Levinson

Imagine that Bill Richardson (who, by the way, has far more executive experience than all of the rest of the candidates put together, should we really believe that such experience is the most important single attribute in choosing a President) gave a cordial greeting to a gathering of La Raza Unida, which, altogether plausibly, claims that the United States basically stole what is now New Mexico from Mexico by precipitating a totally indefensible "war of choice" in order to expand American territory, and has called in the past, I believe, for either independence or returning the land to the "mother country." Or imagine that his wife was actually a member of La Raza Unida. I literally cannot imagine that the bloviators in the right wing would refrain from trying to drum the good Governor out of "respectable" politics.

As it happens, incidentally, I have more sympathy than most people for secessionist arguments. The Constitution is stunningly silent about the possibility of secession, and if one buys the "state compact" theory of the Constitution articulated by Madison and Jefferson in '98, then I (unlike Madison) don't think it's much of a stretch to go down the Calhounian route. At the very least, I think that the Confederate arguments for secession were certainly plausible; the defense of Lincoln's actions in refusing to let them go peacefully depend on one's views of slavery rather than Lincoln's "Union mysticism." And, of course, I have suggested, only half kiddingly, that there is no real reason for California (or the other Pacific rim states) to remain in the United States given a Constitution that systematically works against their interests--led by the Senate and the perverse importance of "battleground" states in the way we elect our presidents. As Dan Lazare suggested in his book The Frozen Constitution several years ago, it may be that the only way that constitutional reform will ever be seriously considered is if California (or, for that matter, Texas) seriously threatens to withdraw unless the terms of the federal contract are renegotiated.

So perhaps one ought to consider the merits of the Alaskan Independence Party's arguments, especially if one professes to believe in some Wilsonian notion of "self-determination" (although, as Daniel Patrick Moynihan pointed out, few ideas have proved more dangerous in the modern world). But, of course, no Republican nationalist would dare suggest that it may not be so terrible to endorse Alaskan independence (which is no whackier than the "independence" of many of the "sovereign states" within the United Nations who lack Alaska's natural resources). Perhaps an analogue is the unwillingness of Democratic Party loyalists to say that it is really irrelevant whether Obama is a Christian or a Moslem (though he is, of course, the former), because there is nothing at all objectionable about rejecting Christianity and accepting the Koran as one's holy text. Thus does the desire to win elections make cowards of us all.



Comments:

Well, I completely disagree about the merits of the secessionist argument -- there are none.* That doesn't make me very sympathetic to the AKIP.

Your point about the double standard, though, is well-taken. The right has never needed or even bothered with an excuse to attack the patriotism of the left; Lord knows they would re-double their fury if there were the semblance of cause.

*A negotiated departure with the consent of everyone is a different story.
 

Speaking as a southwesterner, I regard our absence of secessionist movements a remarkable tribute to our country and its skill at assimilating and winning loyalty. The Southwest was, indeed, stolen from Mexico in a shameless act of aggression against a weaker neighbor. The local Hispanic population has been culturally distinct and in a real sense outside. But we do not have any sort of "reunion" movement equivalent to, say, the IRA in North Ireland, nor a secessionist movement like the ETA in Spain.

Surely that says something remarkable about this country.
 

..which subject reminds me of Vorarlberg 1919. If not for French insistence, huh?
 

Your point about the double standard, though, is well-taken. The right has never needed or even bothered with an excuse to attack the patriotism of the left...

Yes, but there's a reason for the double standard - namely, that the left doesn't really care about patriotism. If McCain refused to wear those stupid flag pins, no one on the left would bring it up - not because of an invidious double standard, but because the left simply doesn't care about flag pins. If, on the other hand, McCain went to AIPAC and said he was for an "undivided Jersualem," as Obama did, we'd hear no end of stories about how ignorant he was, or how senile he'd become. To say nothing of what would happen if Palin made the same gaffe. The left likes to portray the opposition as stupid; the right likes to portray the opposition as snobbish and unpatriotic. I'll leave it to you to decide what's a better political strategy.
 

I speculate idly here whether Russia, as prior sovereign over Alaska, might have a reversionary claim to the place if the US abandons it to secessionists. The same argument could hold for Mexico and the US Southwest. There's actually nothing in the 1867 Alaska treaty that supports such a reading, but even the thinnest of cases hasn't deterred Putin in the Caucasus.
 

Does the Alaskan Independence Party claim that the state has a right to secede without the consent of the federal government? Wanting to be a separate country is different from claiming the unilateral right to be one.

FWIW, Amar's argument about the New York convention's discussion of secession--the state's rights people wanted to reserve a right to secede for a limited time, which wouldn't make sense if there was already a permanent right to secede--seems pretty compelling to me.
 

[Mark Field]: Your point about the double standard, though, is well-taken. The right has never needed or even bothered with an excuse to attack the patriotism of the left...

[tray]: Yes, but there's a reason for the double standard - namely, that the left doesn't really care about patriotism.


I beg pardon to disagree. I think it more obvious that the right really doesn't care about hypocrisy and integrity. The left, albeit, doesn't care about stoopid lapel flag pins as much as the RW purportedly does ... at least on days when the RW foamer brigades are wearing theirs ... oh, waidaminnit, oooops!.

Tray, you're packing in the RNC Post It!™ points here; soon they'll send you one of those neat tote bags...

Cheers,
 

Yes, but there's a reason for the double standard - namely, that the left doesn't really care about patriotism.

Nice way to permanently discredit all your posts.
 

My vert good friend and co-editor Akhil Amar does indeed make a good case for the anti-secessionist position. The problem is that it rests on some statements at the New York ratifying convention (which, of course, made its decision after the nine states required by Article 7 had ratified the Constitution) and, in addition, requires accepting a certain form of originalism. It is beyond dispute that the Constitution does not speak explicitly to secession, and anyone who takes seriously a combination of "state compact/sovereignty" and "self-determination" must acknowledge that there is at least a tenable argument, within American political thought at least up to 1865, for secession.

I find it interesting that Mark field, after dismissing any potential merits to a secessionist argument, goes on to say that "a negotiated departure with the consent of everyone is a different story." Isn't the key question the circumstances under which "everyone" (else) should consent to the claims of a particular area of the country to go its own way? If Texas wishes to secede, what, precisely, are the arguments for refusing to consent to such a desire? That the rest of the US is better off with Texas? So that Texas is simply a means to an end of gratifying the desires of non-Texans? (To make it clear, I do not advocate Texas's secession. I am interested only in the structure of arguments pro and con. I am against secession because I think that Texas benefits from being in the Union.)
 

Even if NY was number 10, it's still mighty strong evidence of the assumptions of the time. And, of course, there are reasons to accept Amar's brand of originalism. (First chance to flog my new paper!) I suppose it depends what we mean by "explicitly." I've always liked Lincoln's argument that a perpetual union, made more perfect, is inconsistent with a unilateral right of secession.
 

Isn't the key question the circumstances under which "everyone" (else) should consent to the claims of a particular area of the country to go its own way?

The key is that when a state joins the Union, it agrees to be bound by the decisions of the Union (that's the Supremacy Clause). That gives the rest of us the right to participate in the decision.

I'm sure Texas would never want to leave. Texans, I've no doubt, believe every word of the Pledge of Allegiance, including the phrase "one nation, indivisible". I'm sure most Alaskans believe this also, even if the First Dude doesn't.
 

The key is that when a state joins the Union, it agrees to be bound by the decisions of the Union (that's the Supremacy Clause). That gives the rest of us the right to participate in the decision.

That's part of it. The other part of it is that forming a union involves MUTUAL benefit. For instance, if Beverly Hills were to secede from Los Angeles County, it would not only affect Beverly Hills, but also the rest of Los Angeles County (including, most obviously, by denying poorer sections of Los Angeles County access to the tax revenues generated by Beverly Hills).

If California secedes from the United States, the US is deprived of its tax revenues, its beaches, the industry of its people, etc. So it isn't simply California's business; it's the country's. For that reason, the only truly legitimate secessions occur when both the seceding state and the remainder of the nation agree (or when the seceding state wins a war).
 

interestingly, i believe when TX was first admitted as a state, it reserved to itself the right to split into four separate states. they have never done so, nor does there appear to be any interest in doing so... but, apparently they could. even if it didn't effect the house reps, it would upset the balance in the senate.

assuming that the "founders" of a state have agreed to the supremacy clause, why should that be perpetually binding on everyone who comes later. perhaps compelling reasons may arise in which such submission no longer makes sense.
 

does it make any difference that the federal government purchased Alaska and could do what it wanted with the territory.

AIP could call to dissovle statehood, but, the land would still be owned by the Federal Government.

Certainly, all the states formed out of the LA Purchase were owned by the Federal Government who chose to grant territories statehood.

Does it make a difference if the land was not first "owned" by the Federal Government?
 

Me:Yes, but there's a reason for the double standard - namely, that the left doesn't really care about patriotism.

Mark: Nice way to permanently discredit all your posts.

Me: I'm not saying that liberals are lacking in patriotism - just that I don't believe liberal commentators spend much time worrying about whether the opposition is sufficiently patriotic, or views a lack of patriotism as a disqualifying factor. Suppose it came out that Obama, in private conversation, said that he wasn't really so high on America - we're way too religious, backwards on healthcare and education, Europeans laugh at us, we're probably in decline, our institutions are poorly designed, in an ideal world we'd have some form of proportional representation, etc. - would the people who write the NYT editorial page mind? Or would they silently think, "right on"? I'd say the latter. Whereas the right would mind because they're committed to the belief that we really are the finest, most perfect nation in the world. Mistakenly so, probably. But you can't really believe that the left values patriotism as highly as the right.
 

For instance, California pays more in Federal Tax dollars than it receives.

What do they get for their tax money? They pay out of the precedent established of statehood in the Union, a shared national identity and huge influx from other states. We share a language and a history, but what do we get for our money.

Arguably, little would change in CA were it to secede except afford for lower taxes, greater environmental controls and the protection from military service of our citizens.

Why shouldn't a CA passports and currency be accepted in every state in what's left of the Union for many of the reasons listed above?

CA could decouple itself from a disastrous foreign and domestic policy and make better decisions for its citizens.

In 1848, California broke away from Mexico and was "purportedly" ceded to the US at the end of another trumped up war. If CA was really a free province when it negotiated entry into the Union, why shouldn't it be allowed to negotiate out?
 

But you can't really believe that the left values patriotism as highly as the right.

Actually, yes you really can.

I think you're close, though. If you were to rephrase it "the left doesn't value conspicuous displays of patriotism as much as the right," I'd have no quibble.

The left is ever-so-conscious of the fact that a display of patriotism (a flag pin, singing the national anthem, etc.) is worth nothing if the person is not willing to stridently defend America's ideals (e.g. be a patriot). The divide is not truly over patriotism, but over what America's ideals truly are. Reconcile those, and you'll heal the cultural divide.
 

"assuming that the 'founders' of a state have agreed to the supremacy clause, why should that be perpetually binding on everyone who comes later. perhaps compelling reasons may arise in which such submission no longer makes sense."

Article VI requires officeholders to take the oath themselves, though. They're free not to, but if they do, they're bound, not because of what the Founders said, but because they agreed to it today. For more see here.
 

assuming that the 'founders' of a state have agreed to the supremacy clause, why should that be perpetually binding on everyone who comes later. perhaps compelling reasons may arise in which such submission no longer makes sense.

In addition to Chris's point, I'll add that yours might have more force for older states.* However, AK voted for statehood in my lifetime. Unless you take the extreme Jeffersonian position that we have to re-do the Constitution every 19 years, that's awfully recent to be arguing that it shouldn't apply "later".

*I don't think it does, I'm just noting the possibility.
 

stipulating that there may have been good reasons to adopt statehood at the time. i don't see why circumstances can't change so much in a lifetime that it is no longer desirable.

imagine a fantasy scenario in which the Bush administration opened up the California coast to off shore drilling. The CA legislature responds with a resolution withdrawing from the United States. Schwarzenegger signs it and the state supreme court says the state has the power to do so pursuant to its constitution.

a committee is set up to begin negotiating the return of CA guardsmen. no more federal income taxes will be paid. federal property will be "nationalized", but paid for at fmv.

what claim does the Federal Government have on California if they want to go their own way?

would they respond by invading?

perhaps lincoln was not correct in deciding to wage the largest, bloodiest war the world had yet seen just to preserve this union.

how old were some of the colonies when they rebelled?

i'm sure all officials swore loyalty to the king.
 

chris,

i agree that Federal Office holders should not be advocating for secession, but, if it comes from a state level, why don't they have the right to secede and form a better union?

there may be good reasons. i'm just asking.
 

"if it comes from a state level, why don't they have the right to secede and form a better union?"

State officeholders have to swear to support the federal Constitution too under Article VI: "[T]he Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution."
 

what if they commit treason like the founding fathers?

do they have to repel an invasion?

isn't this sort of bully-esque?

whatever happened to "consent of the governed"
 

And an old favorite:

To announce that there must be no criticism of the president, or that we are to stand by the president, right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public.

A lot of people on the left have been very public in their displays of their patriotism, then (when they have been allowed).
 

Tray:

Whereas the right would mind because they're committed to the belief that we really are the finest, most perfect nation in the world.

You just gotta love people who are "committed to [] belief[s]" ... particularly and most vehemently when they're contrary to fact.

Tray needs to get out more (sez the guy that's been to more than three dozen countries [albeit with no claim that they're "better" than the U.S. overall or in any particular] around the world so far). Might give him a better picture of "facts on the ground", even if he ignores such facts as the dismal U.S. rankings among developed nations in such things as health care, infant mortality, quality of life, education, etc....

Cheers,
 

And JOOC, Tray:

Whereas the right would mind because they're committed to the belief that we really are the finest, most perfect nation in the world. Mistakenly so, probably. But you can't really believe that the left values patriotism as highly as the right.

Why should we value mistaken judgements?

There's a couple of quotes fron the early 19th century that I liek to juxtapose; one famous:

"Our Country! In her intercourse with foreign nations may she always be in the right, but our country, right or wrong." -- Stephen Decatur

... and the one that should be famous:

"I can never join with my voice in the toast which I see in the papers attributed to one of our gallant naval heroes. I cannot ask of heaven success, even for my country, in a cause where she should be in the wrong. Fiat justitia, pereat coelum. My toast would be, may our country always be successful, but whether successful or otherwise, always right." -- John Quincy Adams

Those that assume perfection and that don't work towards such are traveling on the dime of others far more worthy.

Cheers,
 

Sandy Levinson said,
>>>>>> At the very least, I think that the Confederate arguments for secession were certainly plausible; the defense of Lincoln's actions in refusing to let them go peacefully depend on one's views of slavery rather than Lincoln's "Union mysticism." <<<<<<

Why can't those views on secession be independent of views on slavery? And why can't you see that people of the 1860's had different views of the federal government than we have today?

Anyway, secession is completely impractical today because the federal, state and local governments are too greatly intertwined. There is hardly a pie that the federal government doesn't have its finger in. Anyway, I happen to believe in a strong central government.
 

what if they commit treason like the founding fathers?

There's always the natural right of revolution. There's just no legal right of secession. IOW, you can always accomplish by force what you can't accomplish by law.
 

IOW, you can always accomplish by force what you can't accomplish by law.

That sounds like reasoning that is too common these days, in many venues.
 

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