F.H. Buckley
I thank
those who’ve commented on American Secession: The Looming Threat of a
National Breakup, and in particular Sandy and Jack for sponsoring the
discussion. The book argues that there is a real possibility of a successful
secession movement in the United States and explains how it might happen. It was
not a plea for secession, as Professor Tsai seems to think. I should have
thought that the word “threat” in the title might have been a tip-off.
The
subject interests me because I lived through a secession referendum in Canada.
The United States has a very different history, and the unhappy precedent of
Session 1.0 in 1861 makes it less likely that Secession 2.0 would succeed here.
Could there ever be an American secession, then? I suggest it might happen, for
three reasons.
First,
we’re almost as divided as we were in 1861, in our casual displays of hatred
and contempt for those on the other side. The puzzle is why people would want
to live in the same country with people they think deplorable, and who might
tip an election in ways that infuriate them. Compared to today’s America, there
was vastly more civility and even friendship in Québec, across the oui ou
non divides, during the 1980 and 1995 secession referenda.
Second,
bigness is badness. Since 1787 we’ve become much larger, and very large
countries such as ours are more likely to be unhappy, unfree and corrupt, as I
show in the empirical section of the book. One-size-fits-all rules work much better
in smaller countries. Apart from Professor Waters, however, no one paid much
attention to my simple statistical regressions. The Framers would not have been
so incurious. They looked for historical parallels wherever they could find
them, and one of the greatest of issues at their Convention was the optimal
size of a state.
Third,
modernity lowers the stakes on a break-up. If things went the wrong way, we’d
be more likely to get into a U-Haul than to buy a gun. Tiebout sorting goes on
at present, and secession would take it to the next level. That also was the
story of the Québec referenda.
To be
clear, no state has a unilateral right of secession. The votes of people in
other states matter too, and the vexed questions of the division of federal
property and the seceding state’s assumption of its share of the national debt
would remain to be discussed. Also on the table would be the military
guarantees and alliances needed to calm Jack Balkin’s fears about the
geopolitical consequences of a breakup. But a flat refusal by the federal
government to embark on those negotiations would likely set the stage for a
Constitutional Convention to resolve the issues.
All that
leads me to think that the best guide on how a court might react to a
successful secession referendum was provided by the Canadian Supreme Court in
its Clarity Reference. The question the Canadian Court asked was whether
a clear vote for secession in a province could be ignored, and the answer it
gave was no, given that democracy is a fundamental norm in the Canadian
constitution. Is it less so in America? Democratic countries such as Canada and
Britain have shown themselves willing to countenance a breakup if supported by
a clear majority in one part of the country. Are we less democratic than they
are?
Professor
Nicoletti tells us that the American Supreme Court would never reverse its Texas
v, White decision which had ruled that there was no right to secession. That
decision assumed that the Articles of Confederation remained in force in 1787.
If so, however, George Washington was illegally elected president in 1789 since
the last states to ratify the new constitution did so only in 1790. That’s one
possibility. The other is that Texas v. White was wrongly decided. And rather
than follow that case, I believe that an American court, mindful of democratic
norms, would be inclined to follow the Canadian decision.
Could it
happen, then? We’re not there yet and, while red and blue America seems very
divided, there
are red pockets in blue states and vice versa, as several commentators have
noted. However, in 1995 the province of Québec was divided in just the same way,
and the referendum there came within a hair’s breadth of succeeding. Much the
same can be said of Virginia in 1861.
What
about nationalism, the sense of love of country that binds us together? I can’t
think that very powerful, not when the New York Times’ 1619 Project wins
a Pulitzer and will likely serve as the basis of lesson plans in American high
schools. The Project
asks readers to rethink all of our history from the perspective of slavery and
racial prejudice. “Out of slavery
grew nearly everything that has truly made America exceptional: its economic
might, its industrial power, its electoral system.” To be sure, there was a good deal of
hypocrisy and contradiction on the Patriot side and authentic liberalism on the
Loyalist side, as Simon Schama
and Alan Taylor
have reminded us. But the 1619 Project is so extreme that
even the Times had to walk some of it back, and you have to ask why
anyone would want to live in so infamous a country.
Then
there’s Professor Tsai’s fear that seceding states, or what remains of America,
might enact retrograde laws. There wouldn’t be a return to Jim Crow. The Canadian example shows that exit rights would
not result in great changes in countries where liberal principles have so strongly
taken hold. What might be up for grabs, however, are abortion and same-sex
marriage, which I expect Tsai would describe as “principles that have changed
what it means to be Americans.” And that, I think, explains why liberals would
refuse to recognize secession rights.
It’s not about democracy. Rather, it’s about the
opposite: Power. More specifically the power to dictate the meaning of the
constitution, and (as Chuck Taylor has noted) to label as barbarians anyone who
objects. An overlord clerisy, sure of itself and intolerant of dissent, fondly
imagines that it holds that power, and realizes that secession would mean its
abandonment over some of the country. But what if that power were lost in any
event? What if, in a second Trump administration, a very different constitution
emerges?
In that case, the liberal might ask himself why
he should want to be taxed to send federal moneys to poorer states inhabited by
people he despises? In Quebec, anti-separatist federalists reminded voters that
Quebec was a net recipient of money from Ottawa. They spoke of fédéralisme
rentable—profitable federalism. In California, however, it’s a matter of séparartisme
rentable.
As a
smaller and separate point, I argued that originalists would concede that
states have exit rights, given that so many of the Framers were willing to
contemplate a breakup should the 1787 Convention fail to agree on a new
constitution. Professor Tsai disagrees. He says that Madison nowhere asserted
that a single state had exit rights. Madison was an extreme nationalist and the
big loser at the Convention, but even he said that, should the federal
government invade a state, as happened in my Alexandria on May 24, 1861, that
would give it reason to secede. “The use of force against a State, would look
more like a declaration of war, than an infliction of punishment, and would
probably be considered by the party attacked as a dissolution of all previous
compacts by which it might be bound” (Farrand, at I.54; see also Farrand I.165;
Farrand I.320; Farrand II.19-20 n; 3
Elliot’s Debates 414-15, June 14,
1788; sed contra Farrand II.93).
Yes,
there is a Madison problem. Theories, for Madison, burned with a hard, gem-like
flame, which explains his popularity amongst legal academics, that and the
silly conceit that
he was the “father of the Constitution.” But Madison was a supple theorist and when one
theory proved inconvenient, he could always find another.
Implicitly,
I was siding with “original intent” rather than “public meaning” originalists,
and am chided by Professor Tsai for this. Now, there are several reasons to
reject public meaning theories, but let me mention one. As a canon of
interpretation, originalism in-one-country is a non-starter. If public meaning
theories are to be followed, then, and the 1867 British North America Act were so
interpreted, it would follow that Canada is and should be an absolute monarchy
which Queen Elizabeth can rule the way Charles I ruled England. That is not
what the Fathers of Confederation intended, to be sure, in the BNA Act.
I don’t
doubt but that the Queen would do a good job of it, mind.
F.H.
Buckley is Foundation Professor at Scalia Law School at George Mason
University. You can reach him by e-mail at fbuckley at gmu.edu.