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
At the conclusion of Part I of American Secession, Frank Buckley declares that “it’s time to think
seriously about Secession 2.0 as a possibility.” I have to confess: I don’t know whether to
take that statement at face value. Is
the argument of this book serious or not? At the very end of the book, Buckley
reveals himself to be a Unionist, apparently, and the book is a merely a
polemic or a thought exercise. We should
take the possibility (threat?) of secession seriously in order to avoid
it. If Americans thought that secession
were a real possibility, they might be more willing to compromise with those
who disagree with them politically. But
is secession really on the horizon?
There was a culture of threatening secession on the eve of the Civil
War, which functioned for a good long while as a negotiating tactic in order to
win many concessions for slavery. But secession is not part of the political
discourse in today’s America, unless Buckley intends his book to spark such a conversation.
The idea of threatening secession in order to force a
compromise strikes me as ill-advised.
It’s certainly a counterintuitive strategy. In his first Inaugural Address, Abraham
Lincoln compared our Union to a marriage, emphasizing that the disparate parts
of the United States cannot separate. He
argued that coexistence in an unbreakable Union invited compromise and that
negotiating treaties across a national border did not. I agree with Lincoln on this point.
Buckley argues that the fairly recent ascendancy of Originalism
would lead the Supreme Court to reject the precedent of Texas v. White and go back to what the founders said about
secession. There are two problems with
this argument on its face. First, I
don’t believe that a majority of justices on the Supreme Court would blithely
dismiss a precedent like Texas v. White. Yes, it is true that there is widespread
adherence to Originalism on the right, and to some extent that adherence to the
original meaning of the Constitution has led its proponents to toy with the
idea of rejecting judicial precedents that deviate from the original
understanding of constitutional text. But, even in those circles, the
disruption of precedent is far more controversial than Originalism is. It’s one thing to decide new cases according
to the original meaning of the Constitution.
It’s entirely a different matter to advocate for overturning a case like
Texas v. White on Originalist
Second, it’s not the case that secession accords with the
original meaning of the Constitution. My
own view is that the Union was formed first, and a well-reasoned understanding
of what that Union signified came later.
At the very least, there were certainly significant differences of
opinion on secession question prior to the Civil War. What is more, Chief Justice Salmon P. Chase,
the author of the Texas v. White
opinion, framed his decision in terms that would resonate with Originalists. Chase argued that it was the Constitution
itself and the terms of its adoption in 1787 that prohibited secession from the
Union. He declined the opportunity to
rule on the grounds that the war’s outcome had made a difference in answering
the question, a possibility he had flirted with a year and a half earlier in a
circuit court decision. And what, I
wonder, would an Originalist make of the significance of the Reconstruction
Amendments, all adopted in the aftermath of Union victory? As I have also argued elsewhere, the authors
of the Fourteenth Amendment surely endorsed the idea of the Union’s permanence.
But I digress here.
I’m not an Originalist; I’m a historian, and my historical expertise
lies not so much in the parsing of judicial decisions but in the interaction of
formal law with historical events – and in particular, with the cataclysmic
reality of the Civil War. It’s this
perspective that I really want to apply both to American Secession and to Boxing
Both of these books led me to think about historical
trajectories and how it is that certain possible options – in this case, a
state’s ability to engage in unliteral secession – get foreclosed. I wrote a book that explored secession’s
lingering post-Civil War career in the years immediately following Appomattox,
but I only offered a very tentative analysis of how it is that secession
eventually disappeared from political discourse in the United States and truly
became foreclosed as a viable option. As
I argued in my book, the nation wrestled with the question of whether the Civil
War could truly provide a definitive answer to the secession question in the
late 1860s. For a time, it seemed possible that Union victory could be
undermined by a contradictory decision in a court of law. And as Buckley points out, the case that
presented the greatest challenge in this regard was Confederate President
Jefferson Davis’s treason prosecution.
The Supreme Court’s decision in Texas v. White provided a formal answer to the question in 1869,
but at the time it was handed down, Chase’s opinion in the case was not really
viewed as a neutral assessment of the logical premises undergirding secession. Instead, as many Court observers pointed out,
it was a decision that was designed to ratify the outcome of the war and to
ensure that the law matched social and political reality on the ground. Legal theorist John Codman Hurd insisted that
the Court was obliged to obscure the fact that life rather than logic had
guided the Court’s determination.
In time, as the opinion was read out of its immediate
context, it served the purpose that Hurd had envisioned. It took on a life of its own once it was ensconced
in the U.S. Reports, thus ensuring that the determination of the law had
matched the verdict of the battlefield.
Generations of Americans understood that the Civil War had determined
the illegitimacy of secession, both legally and practically speaking. It had established the permanence of the
In fact, it seems to me that the war’s success (as
buttressed by Texas v. White) along
this dimension has been so complete as to render it nearly invisible. The permanence of the Union has not been
seriously questioned since 1865, despite the persistence of fringe arguments
about the lack of persuasiveness of Chase’s opinion and the brutishness of
settling serious constitutional questions through physical combat. We’ve taken the basic integrity of the United
States for granted, and the idea of breaking the Union into disparate pieces
has been relegated to the realm of the wacky.
This was not so before 1860, when the discourse of disunion played a serious
role in the American political sphere.
Threats of secession and national reconfiguration were fairly routine,
and they were not confined to the southern states.
Such threats evaporated after the conclusion of the Civil
War, and a cultural sense of national belonging took hold. The removal of secession as a political and a
constitutional possibility eventually cashed out in daily life as a palpable
sense of assurance about the integrity of the American Union. The Civil War did its work so well in this
regard that its effect became largely unnoticeable. It was simply a fact of life in the United
States, one that Americans take for granted.
Contrast this, if you will, with the impact of the other
major constitutional consequence of the Civil War: the destruction of
slavery. The destruction of slavery
seems real and tangible and worth the sacrifice of the many hundreds of
thousands of lives that the Civil War consumed, in part because the victory
over slavery seems incomplete still. We
are still fighting this battle today, and so we do not forget what it took to
achieve emancipation. This is not true
of national integrity, which was also a product of the Civil War. It was similarly hard-won, but its triumph
has been so complete that we hardly take note of it. It slides into our consciousness without any work
or any reflection on our parts.
And so the story of secession in the United States is, like
most historical stories, highly path dependent.
Secession is a path that has been foreclosed by events of the past, such
that its revival seems nearly impossible.
It’s not an idea that can be divorced from its past association with
slavery and the Confederacy in today’s America.
The combustion of the Civil War and the historical settlement that was
achieved in its aftermath on the secession question, tentative at first and
then beyond dispute as time passed, foreclosed an option that might have once
seemed viable. Buckley’s efforts
notwithstanding, it doesn’t seem like American secession can be rehabilitated
and repurposed as a solution for modern problems. The Civil War did its work too well, and we
will just have to learn to live together.
This brings me, in a roundabout way, to Timothy Waters’s compelling
book on secession in the international context.
I have less skin in the game here, as I’m an American historian. But Waters’s Boxing Pandora also got me thinking about historical trajectories
and how those are made – and perhaps unmade.
A secession option like the one Waters advocates strikes me as more
plausible in the international arena than in the domestic one. I’m also more convinced that it might be a
good idea in that context. Indeed, it’s
difficult to disagree that subsidiarity and self-determination would be
strengthened by allowing secession under certain conditions, and the conditions
that Waters sets forth seem reasonable.
Secession is far less freighted in the international arena
than it is in the particular context of the United States. When discussed in the abstract, it’s
untethered to the difficult political struggles of any state and thus freed of
the baggage of any given conflict between groups of people. Divorced from the ugliness of the battle over
slavery in the antebellum United States – or any other ugly political battle, secession
is a neutral principle that allows a people the freedom to define (and to
continue to redefine) itself as such.
The sticking point militating against secession, as Waters
persuasively demonstrates, is the inertia of history and the stickiness of the
national borders that had been put in place by the end of the Second World War in
1945. Waters points out that, by failing
to recognize a right to secede from existing states, we have frozen political
boundaries in time. At the time of the
UN’s founding, the international community recognized the importance of
self-determination and pledged to allow colonized peoples to throw off the rule
of their colonizers, but it drew an artificial line in the sand and would not
allow further political reconfiguration that might become desirable in the
future. By failing to instantiate a rule
granting a locality the ability to secede from a parent state, the architects
of the international legal regime placed a higher value on stability than on
self-determination. The right to
relocate national borders would be only retrospective in nature, and
international law would essentially ignore the inevitability of political
churning and new demands for independence from unpredictable corners of the
Such a premise is untenable in the long-term, as Waters
points out. Failure to recognize a legal
right to secede would hardly forestall a serious breakaway movement. Law does not effectively erase people’s
desires in this way, and it is foolhardy to presume that it could. Waters’s
book, imaginatively conceived and energetically argued, prompted me to meditate
on the degree to which law acts to constrain human behavior and to structure
human consciousness. To what extent will
people make their own geographic boundaries and compel the law to adapt to
their demands? And to what extent do
people adapt to the law’s arbitrary lines?
I, like Waters, have lived in several different states and have formed
attachments (in varying degrees) to all of them. We may chafe at borders, and yet borders shape
our understanding of who we are.
The “dead hand” of foreclosed historical trajectories hangs
over both Boxing Pandora and American Secession, albeit in very
different ways. Waters argues for the
importance of recognizing that history does not end just because the law
compels it to do so. It is futile to
attempt to stop cultural developments – or at least to forestall all future cultural developments – after
an arbitrary end date. National and
subnational attachments will form and loosen over time regardless of UN
directives not to disrupt the integrity of national borders. Waters asks us to
acknowledge this inevitability instead of turning a blind eye to the
issue. On the other hand, Buckley seeks
to revive a secession option that history has foreclosed in the United States. Modern American political culture is premised
on the basic integrity of the Union. Because
the future is always uncertain, it is possible but highly unlikely that
secession could once again become a subject of serious discussion in the United
States. Reviving it at 150 years’ remove
from the Civil War would entail nothing less than wrenching the nation of off
one historical path and on to another.
Cynthia Nicoletti is Class of 1966 Research Professor of Law
and Professor of History at the
University of Virginia.
Her email address is email@example.com.