Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Timothy Waters, who has written a deeply thoughtful book in Boxing Pandora, shares Buckley’s enthusiasm for more explicit rules that make it easier for unhappy people to withdraw from existing political arrangements and begin again. Both authors are pro-secession. What Waters brings to the table is a conceptual approach that is informed by his impressive understanding of the history and organization of the international order rather than what any particular country’s tradition might say about the subject. He doesn’t necessarily subscribe to the view that smaller is always better, though he’s convinced that “proximity matters in ordering morality.”
Because of its conceptual orientation, which is non-judgmental as to substance and otherwise procedural, Waters’s approach potentially has the greatest utility. Any group with secessionist designs would find his view attractive and try to impose his approach on their circumstances. I won’t go into how this approach differs from two other models he discusses, though I recommend that part of the book. According to the right of secession defended by Waters, “any group of people may form a new state.” It doesn’t have to be a community already bound by, or aspiring to create, a unified language, culture, or race. But his approach to exit wouldn’t forbid a group from creating a new ethno-state or other kind of illiberal state on one’s border either. There are three other conditions: (1) the group must actually live in the same place; (2) the group must express their intentions by referendum; and (3) the existing state must then negotiate an orderly exist in good faith.
One fascinating feature of Waters’s argument is its evenhandedness; he’s completely agnostic about the reasons people might give for wanting to exit. That also means that he doesn’t think that “remedial secession”—where a group invokes a history of human rights abuses to justify departure (think Kosovo)—warrants a leg up. This reveals the thin, liberal notions that tie together the strands of Waters’s argument. Given all that is actually guaranteed is a right to spark a conversation and then negotiate in good faith, the breakdown of talks would presumably allow leaders of an existing state to resort to force to restore order. Will adopting this approach actually lead to more peaceful redrawing of borders and the orderly exchange of peoples and resources? It’s hard to say either way without giving it a try, of course, but it certainly confirms the liberal’s belief that codification is somehow always better than proceeding by custom and shows of strength.
Both Buckley and Waters envision secession in largely optimistic terms, which, while shocking, might be right. But the prediction could also be wrong. Surely recognizing such a right explicitly rather than leaving it as a de facto occurrence, rooted in local traditions, or grounded in natural law would be more disruptive than either has painted it. Lincoln doesn’t have to be right that “the central idea of secession is the essence of anarchy” for us to see that when law recognizes rights, a culture of rights develops, and more people are willing to exercise those rights.
At times, Waters downplays the trauma that comes from a legal order that could, at least in theory, fracture anytime a major controversy arises. Discussing Yugoslavia, Waters goes so far as to claim that “violent resistance to secession is the problem” rather than the impetus to secede. Surely that’s how the slaveholding states saw the Union response, too, but it’s also true that the entire country’s precious resources, territory, and inhabitants were at stake. It would introduce a threatening idea to majoritarian governance to empower any group to make plausible claims as to independence (Buckley acknowledges the radicalism of his idea when he says that nation-states don’t get special treatment).
In other words, there is no limit to the logic of secession as Waters as formulated it. With refreshing honesty, he admits that a right to secession would attract everyone “from warlords to lunatics.” He offers some possible solutions to the problems of capaciousness and evenhandedness, but they are largely procedural in nature. We could demand a supermajority requirement to ensure that only widely-shared and intense desires to exit deserve a response. We could establish a minimum population threshold before a referendum triggered negotiations in order to keep a tiny group from winning. Of course, none of these things would address the fundamental, normative questions that something like #CalExit would pose, such as why some Americans should be able to get away with seizing control of 14.5% of the country’s GDP beyond the fact they happen to live in some place, or why well-organized subpopulations wouldn’t just treat the right as a way to extract undeserved concessions from their fellow citizens. Territory and control are nods to tangible reality, but they aren’t the same thing as reasons.
Let's bring Buckley back into the picture. Even home rule, which Buckley dubs “a halfway house,” could worsen polarization within a country. Those who are minorities living in a state that vigorously exercised its prerogative to object to national laws or Supreme Court rulings would surely appeal for help from allies in other states. Inhabitants with the means to leave might then stay and fight. You might see an influx of migration from other states by people committed to reversing a state’s course of action. In that event, altering the locus of power wouldn’t end contestation or guarantee peace, and might very well intensify mobilization (as well as bitterness) against jurisdictions that sanction outlier behavior.
One final thought about the claim that secession is a good answer to discontent or indifference, which is made by both provocative books. In the words of Albert Hirschman, “the presence of the exit option can sharply reduce the probability that the voice option will be taken up widely and effectively.” The way to improve loyalty, then, would be to focus on improving voice—which could be done in any number of ways by coming up with a new constitution, making democratic reforms, or limiting judicial review—rather than creating fresh incentives for everyone to go their separate ways.
Robert L. Tsai is Professor of Law at American University. You can reach him by e-mail at firstname.lastname@example.org.