Wednesday, January 07, 2015

"Popular Sovereignty, Self-Determination, and Secession" (Why Wilson may be more important than Lenin)

Sandy Levinson

I have not been posting recently, partly because I've been working on finishing a book on The Federalist, which I've just sent off to the Yale University Press for publication sometime around September, and organizing a conference at the University of Texas Law School.  

“Popular Sovereignty, Self-determination, and Secession” will be the focus of a symposium to be held at the University of Texas Law School on January 22-24.  Participants will be drawn from several disciplines as well as several countries.  

Formal registration is not required. 

So why is the topic so important?  Consider the following excerpt from Woodrow Wilson's speech to Congress in 1918, which may be said to have transformed the purpose of World War I, at least so far as the United States was concerned, from “simply” defending democracy to endorsing the claims of all peoples to “self-determination” as part of the breakup of the existing imperial order (at least in Europe) that was the consequence of the conflict that began 100 years ago (and whose results we live with every single day):

Address of Woodrow Wilson to Congress, on February 11, 1918

Peoples are not to be handed about from one sovereignty to another by an international conference or an understanding between rivals and antagonists. National aspirations must be respected; peoples may now be dominated and governed only by their own consent. "Self-determination" is not a mere phrase. It is an imperative principle of actions which statesmen will henceforth ignore at their peril. We cannot have general peace for the asking, or by the mere arrangements of a peace conference. It cannot be pieced together out of individual understandings between powerful states. All the parties to this war must join in the settlement of every issue anywhere involved in it; because what we are seeing is a peace that we can all unite to guarantee and maintain and every item of it must be submitted to the common judgment whether it be right and fair, an act of justice, rather than a bargain between sovereigns….
This war had its roots in the disregard of the rights of small nations and of nationalities which lacked the union and the force to make good their claim to determine their own allegiances and their own forms of political life…
The principles to be applied [in achieving a conclusion to World War I] are these:
First, that each part of the final settlement must be based upon the essential justice of that particular case and upon such adjustments as are most likely to bring a peace that will be permanent;
Second, that peoples and provinces are not to be bartered about from sovereignty to sovereignty as if they were mere chattels and pawns in a game, even the great game, now forever discredited, of the balance of power; but that
Third, every territorial settlement involved in this war must be made in the interest and for the benefit of the populations concerned, and not as a part of any mere adjustment or compromise of claims amongst rival states; and
Fourth, that all well defined national aspirations shall be accorded the utmost satisfaction that can be accorded them without introducing new or perpetuating old elements of discord and antagonism that would be likely in time to break the peace of Europe and consequently of the world.

To put it mildly, Wilson’s “principles” raise many questions.  Consider, for example, the following commentby Karl Meyer in The New York Times of August 14, 1991,

If one were to choose the man of the hour in post-Communist Europe, his name might well be Woodrow Wilson, long deceased and seldom celebrated. For he was the President who memorably informed Congress in 1918 that "self-determination is not a mere phrase. It is an imperative principle of action which statesmen will henceforth ignore at their peril."

From the Baltics to the Adriatic, from the Ukraine to the Balkans, oppressed millions have given new life to his imperative -- and often troublesome -- principle. Indeed, if results are the measure, Wilson has proved a more successful revolutionary than Lenin.

Wilson's anxious Secretary of State, Robert Lansing, sensed at once that self-determination was a phrase "simply loaded with dynamite." As he presciently remarked in a confidential memorandum in December 1918:

"What effect will it have on the Irish, the Indians, the Egyptians, and the nationalists among the Boers? Will it not breed discontent, disorder, and rebellion? Will not the Mohammadans of Syria and Palestine and possibly of Morocco and Tripoli rely on it? How can it be harmonized with Zionism, to which the President is practically committed?"

Lansing's alarm was shared by the imperial victors in World War I, who successfully diluted Wilsonian doctrines at the Versailles peace conference. Britain, France and Italy firmly rejected self-determination for their own colonies; they applied the principle only to defeated powers, and did so inconsistently. Even so, however grudgingly, they lent force to a slogan seized on by aggrieved peoples everywhere to challenge imposed rule.

To be sure, the phrase was trumpeted by dictators as well as democrats. Lenin's Bolsheviks championed self-determination -- for those not under Soviet control. Hitler claimed the right for those Herrenvolk who were outside Germany, while subjugating whole nations without pity or scruple.

Lansing's initial misgivings were prudent. If Wilson was right, he asked, was Lincoln wrong to deny self-determination to seceding Confederate states? And what unit did Wilson have in mind: a race, territory or a community? "Without a definite unit which is practical," he wrote, "application of this principle is dangerous to peace and stability."

These are sand traps that Wilson largely and loftily ignored. To dissolve a union by unilateral secession can nullify democracy and sunder a nation that owes its existence to an act of self-determination. Few states are tidily homogeneous; frontiers are often disputed. Nor is it self-evident that a passport and national flag are essential to self-determination: Switzerland's several peoples have cohabited in a single state for centuries.

Yet qualifying a principle is very different from rejecting it. Lansing, a realist, sourly scorned Wilson's vision as "the dream of an idealist who failed to realize the danger until too late. . . . What a calamity that the phrase was ever uttered!" Try telling that to a billion people whose liberation has been speeded by a doctrine enshrined in the first article of the United Nations Charter.  [The first article, in relevant part, is as follows:

The Purposes of the United Nations are:

2.       To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples…]

Wilson, who died defeated and embittered, has earned the epitaph bestowed by Londoners on Sir Christopher Wren: If you wish to see his monument, just look around.

It is now more than two decades since Meyer wrote his column, and we can easily supply additional examples, ranging from Quebec to Scotland to Kosovo to Kurdistan to….  We should be under no illusions that our brief time together will supply anything in the way of definitive answers to the questions raised by Meyer (and many others). but my hope is that we can have illuminating discussions.  The basis of our discussions will be a mixture of traditional “legal” materials, including some cases, and political theory. 

The schedule for the symposium is as follows:

THURSDAY, JANUARY 22  5:30  Tom Sealy Lecture  (Eidman Courtroom, UT Law School)

David Armitage (Harvard):  "Three Concepts of Civil War: Succession, Supersession, Secession”

Introductory remarks  9:10-9:25   Dean Ward Farnsworth, Sanford Levinson

1.       9:30-10:30  An overview:  what have written constitutions actually said about popular sovereignty and secession?  Zack Elkins (University of Texas Department of Government), comment by Wayne Norman

2.      10:45-12:30    Rule by “we the people” in the United States:  To what degree have legal instruments (ranging from the British constitution in operation in 1776 to the United States Constitution of 1787 and state constitutions) cabined “popular sovereignty”? 

Sandy Levinson, moderator (and participant); David Armitage (Harvard University),  Roman Hoyos (Southwestern Law School); Michael Les Benedict (Ohio State Department of History, emeritus)

LUNCH  12:40-1:55
3.      2:05-5:00   Secessionist impulses in Europe and the former Soviet Unio

Ran Hirschl (University of Toronto), moderator and participant

Victor Ferreres (Barcelona, visiting the University of Texas Law School), Stephen Tierney (University of Edinburgh); Elise Giuliano (Columbia); Susanna Mancini (University of Bologna, Johns Hopkins)


4.  9:30-noon    Coming to terms with the theories (and practices) of popular sovereignty, self-determination, and secession

Gary Jacobsohn, University of Texas Department of Government, moderator and participant
Wayne Norman (Duke); Stephen Tierney (Edinburgh); Susanna Mancini (Johns Hopkins and Bologna), David Armitage (Harvard); Maurizo Viroli (University of Texas Department of Government)

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