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
Socrates said, “I only know general things.”Boxing Pandora’s argument is general. But if it works,
it should work for America too – at least for a world with America in it.
If the world were America, my book would be very
different; I might not even have bothered. But the world’s more, the problem Boxing
Pandora addresses is real, and the reasons it is have something to do with a
global order which America, more than any other country, has shaped. Even if
secession isn’t fit or wise for this country, it’s worth considering what America’s
role might be in shaping a solution to what most assuredly is a problem for the
much of the world.
by the thoughtful engagement in this symposium. For scholars who disagree with
my thesis to take it seriously is a high compliment. I see six themes across their
critiques – two about practical outcomes, two about history and process, and
two about America. Namely:
makes things worse, and other things work better;
are historical, and customs preferable to rules; and
can’t work in America, and America won’t tolerate secession in the world.
with the four general critiques in Part One, the two about America in Part Two.
Several of them depend on curiously static assumptions – fixities, the
interrogation of which is the point of Boxing Pandora. That’s a
theoretical purpose – but not ideal theory: I am consciously making a normative
argument in light of realist assumptions about power and law.
reviewers are thoughtful, their views serious. So I’ll end with a suggestion of
how, if they’re right, an exceptional America, in which secession is neither
possible nor desirable, might nonetheless contribute to a practical right of
1. Worse. . .
Does secession make things worse? What if new states
enact bad laws, or oppress new minorities? What if the mere possibility of
secession makes minorities threaten exit to blackmail the state?
Some things only look worse. The ‘undeserved concessions’
Tsai worries about are the politics any sensible theory of secession should
count on. (Coase might agree.) After all, what is ‘undeserved’? Why would we
assume things are deservedly distributed in the existing state? This objection sounds
less empirical than normative: its ‘efficiencies’ only make sense if you
assuming the existing state.
Somin’s fear that secessionists might be “severely
oppressive” shouldn’t concern us. Not because they won’t, or because small is
argue at length against assumptions that smaller states are worse, but avoid
Buckley’s claim that they’re necessarily better. Better is the state
whose people desire it.) It’s because there’s
no data to support the fear that they’ll be worse – besides, we have few
ways to ensure good behavior by existing states. It’s less a prudential
objection, more a default preference for the status quo.
suggests an ameliorating move I favor: nothing precludes additional
requirements – human rights, minority protections, denuclearization. A right of
secession isn’t self-actuating, it needs diplomatic support – so secessions are
moments of leverage (which we don’t have over existing states).
But change is risky: Why vote on such momentous questions,
when people are so demonstrably ignorant? Somin worries people will make
foolish choices. But that’s a concern for democracy in general. Existing states
are often ethnicized and no more likely to promote unbiased decision-making; at
most, they have the grim virtue of stable expectations. Yes, the stakes are
higher in secession – which is precisely why it’s desirable to ask the people
directly. To say people cannot be trusted is to say that the most essential
question of governance cannot be asked. (Nothing prevents states from incorporating
elites or legislative input. And Somin’s point suggests something I didn’t emphasize
in Boxing Pandora: the best referenda will be two-staged. A confirmatory
vote would have dramatically reduced Brexit’s dysfunction.)
2. And Better
Even if secession doesn’t make things worse, don’t
other tools work better? Why secession, when federalism and voting with your
feet don’t break up the state?
We needn’t prefer secession. They aren’t mutually
exclusive; a state can offer minority rights and allow secession. But secession
has a unique feature: Other tools ameliorate the problem of being in someone
else’s state; secession allows a community to take on the role of a
state – subsidiarity at the system level.
Other tools don’t magically operate – they are
domestic political bargains, made in particular circumstances and in the shadow
of global norms. The deal’s predictably less good for minorities because the bargaining’s
done in a locked unit. A
key insight of Boxing Pandora – one that follows from negotiations and
game theory – is that communities make better bargains if they can exit.
Secession isn’t just about leaving, but about better deals for staying.
a right of secession increases the chance of secession. For some, this is a
harm, because we should prefer ‘voice’ to exit, but that’s a false choice. Allowing
exit creates incentives for states to give communities ‘voice’ so that they
won’t leave. Besides, while states should give citizens greater voice, making
that shared voice a moral good precludes the very question at issue:
Ought this be a people?
‘Voice’ is ironic, because behind many
objections to secession is an unvoiced assumption: Breaking up the state is
failure, a bad thing. But there is nothing inherently good about the states we
happen to have; they are even less likely to be good if their own people don’t
3. A People isn’t an Election: The Uses of
are those people? Boxing Pandora relies on referenda to identify and justify
new states – a thin, procedural liberalism that ignores the thick, historical
drivers of belonging and identity.
worries I’m in thrall to social constructivists. But I agree with him (and
Nicoletti) that identities form by historical processes. They’re sticky –
constructed, but not just as we please. (That’s Renan’s point: historical
foundations and the need to affirm them. It’s history and the
is not how a people comes to be, but how we respond to it in politics. (It’s a
classic risk for the social sciences – how to move from description to
prescription.) Identities form in historically grounded ways, but if some group
says ‘we wish to form a state,’ the practical response isn’t ‘No you don’t
because you aren’t historically situated.’ That’s like asking what’s the matter
with Kansas; you may wonder why people vote against their interests, but you
count their votes.
I advocate a thin model – I believe in the rootedness of identity, but observe
that there’s no agreement on these things. Reasons matter, and reasons given
publicly matter even more. Kurds claiming statehood based on blood would elicit
one response; based on ballots, quite another.
doesn’t “ban as illegitimate any acknowledgement of objective criteria of
membership. . .and any appeals based on historical grievances” (Lind). The
reasons people choose independence will be precisely those kinds of things. Thick
identity is allowed – expected; just not required. Groups can communicate their
desires through a clear vote on a clear question. (Catalan separatists have
been quite disciplined in making territorial arguments that leave out speakers
in Valencia, the Balearics, Andorra and France. They’re nationalists, not
is more than an ephemeral numerical majority – but the way to show that is not
to bang on about one’s blood or Spartanness, but to win elections. Voting is a
mere moment, but everything that really matters – the blood and history and
money and pettiness and principle that engender identity and desires – are
present in the politics, the debate and the decision that moment represents. We
have no better.
argument is strategic, and Lind has discovered my intended audience: not
secessionists (who typically love me), but governments, policymakers and
intellectuals in that North Atlantic world so suspicious of them. They’re the
ones who need convincing.
4. And Historical Custom is Better than Liberal
Boxing Pandora proposes a
new rule – a new right. Tsai, Nicoletti, and Lind prefer tradition, socially
and historically grounded customs, thick with meaning, over thin liberalism and
codified, formal rights.
I agree. Law works better when it reflects and arises
out of pre-existing social understandings – when it “recognizes rights” (Tsai)
rather than conjuring them. I’d prefer
custom over codification. The problem is, we already codified the rules in 1945.
The norms and practices of territorial integrity produce a bleak negotiating
field for communities locked inside states. That isn’t the natural order – it’s
an artifact of a particular, quite recent design choice.
I’d prefer to entrench a practice of secession without the rigid language
of rights. But we already have a human rights regime – the other half of the
bargain struck in 1945 – and it’s the least implausible tool for making an
explicit break with existing norms and practice. (That’s precisely what rights
are good at.)
alternative to legal rights isn’t some genteel realm of custom and informed tradition.
I reach for ‘rules’ because the alternatives – Tsai’s “shows of strength” and Balkin’s
unmediated Melianism – are so brutal. De
facto practice and local traditions are formulae for suppression: Most states
have territorial integrity norms, explicit or implicit, so the domestic
machinery yields a predictable answer. In fact, as Spain shows, it makes things
worse, because unionists righteously point to legality as a reason to resist,
even though the legal order is the very thing being contested.
need to be thin because identities are thick. Lind wants a more useful guide to
“to how to think about the difficult relationship of ethnocultural nations to
territorial states in the contemporary world.” Me too. Someone should write it.
Part Two, we’ll turn to America.
Waters is professor at Indiana University
Maurer School of Law. You can reach him by e-mail at email@example.com.