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
Part One addressed general critiques about
secession around the world; here, America.
is Different. . .
We might agree Spain’s been heavy-handed, and what’s
happening in Cameroon is disturbing. But this is America! Secession might work
somewhere else, not in this nation forged by a struggle against
secession. We’ve foreclosed that option.
If my argument doesn’t work here, that’s an important
challenge. Every country is its own America: The international arena is a
concatenation of domestic contexts, each as particular and as fraught. But territorial
norms are general, and each state operates in their shadow. So a secession norm
has to be applicable – if not applied – in each society, according to its own
history and understanding. (Like democracy – which secession, rightly
understood, is an exercise of.) That’s the challenge my general argument
presents, and a very uncomfortable one it is.
I agree with Nicoletti (and Lind) that secession’s a
non-question in America. What makes it marginal is not Texas v. White;
it’s our historically informed present – the success of sustained, sometimes
violent processes that produced a national identity. The brutish means by which
it was created are neither here nor there; the identity is genuine.
But my model doesn’t require secession, only the
option. (I wouldn’t vote for it, though my patriotism skews Californian.) If Americans wouldn’t exercise
it because they identify with their country’s ideals, that’s a true and useful
The question is whether a right of secession would undo all
that, provoking new fractures that, in turn (per Balkin) would necessitate a
new round of brutishness. Unwise to fix an unbroken thing: We shouldn’t
casually tinker with the machinery – but I’m leery of arguments that counsel
paralysis in response to challenges.
I detect a tautology, one I’m familiar with from international
policy in the Balkans: as long as things are unstable, we can’t question
borders; but once things stabilize, we mustn’t risk shaking them up. If
America’s identity is so brittle that the mere possibility of exit would rip
the country apart, perhaps the path, however dependent, is less fixed that it
The thing I doubt is not that defeating the South created
the space for a national identity (empirical and true) but that therefore
we should not allow secession as an option today (normative and questionable).
If we have really succeeded in creating a national identity, we should be able
to relax that particular grip without coming to pieces. Better, always, to
persuade than insist.
Path dependency can powerfully explain who we are and how
we got here – even predict where we are likely to go. Less useful, however, for
justifying our choices, where we have them. It risks justifying
inaction. Secession and slavery are linked in America’s imagination – and divorcing
the idea of secession from its incidental association with slavery is precisely
what we should do, as an act of intellectual integrity and political
emancipation. Not only for ourselves: There is an entire world whose histories
don’t have an American valence; we should not impose it on them.
6. And Exceptional
Unless, tragically, we need to. Perhaps on Realpolitik
grounds, America can’t allow secession, and rules have nothing to do with it. The
gravest objection is Balkin’s comment, passim, that his realist take and
my normative argument have nothing to do with each other. Hardly: If he’s
correct, it’s a serious objection to my proposal, because we shouldn’t
encourage the impossible, or even the predictably disastrous, just because it
might be ‘right.’
Buckley outed himself as a unionist; I’m a realist, by inclination
and training – a rare thing among international lawyers. I consciously
structured my book as much around international relations as international law
– not the idealist, institutional end, but the other, darker pole. I haven’t
paid my dues to the New Haven School. There’s a lot of Wilson in my book, but
even more doubts about him. Lots of E.H. Carr, without the doubt.
I’d be dismayed to encounter someone who didn’t
think secession was about power politics. And not just secession: nobody should
get a JD, or a degree in human rights, without reading the Melian Dialogue.
Unless one is writing ideal theory – as I clearly am not – one has to keep
power in mind, including law’s marginal relationship to it.
There’s not much law in Balkin’s argument; for a
constitutional scholar, he’s surprisingly focused on nuclear weapons. But his
realism is overwrought. It’s simply not true that geopolitics yields such rigid
conclusions, and his examples demonstrate it.
Balkin quotes Lincoln’s First Inaugural on the impossibility
of dividing, since that would lead to endless frontier war. The American death
toll that followed has yet to be matched by all of our subsequent adventures.
Well, things could have been worse, but it reminds me of another exercise in overdetermined
realism from one of those adventures: how in Vietnam we ‘had to destroy the
city to save it.’ (And we’ve been dividing the continent peaceably – with
Hegemons can face secession challenges and give in.
The Soviet Union collapsed in a (surprisingly) peaceful process; that risked
instant proliferation of nuclear weapons, which the US successfully managed.
It’s plausible to imagine something similar in a break-up here – Pacifica agreeing
to surrender nuclear control to the remainder US (which has long positioned
weapons on allies’ territory).
Geopolitics explains only so much. Countries like Canada
and the UK don’t tolerate secession only because they are junior partners in America’s
security architecture; their decisions are shaped by the kinds of politics
Nicoletti and Lind describe. The almost mathematical certainty of Balkin’s
scenarios – with the leaden inevitability of an alternate history – suggests
what the analysis is: a mechanistic, deracinated realism that forgets realism’s
Realism, properly understood, asks how to operate in a
world of power to achieve something you want. Read the last chapter of The
Prince. Levinson catches this sense, noting how “[o]stensibly hard-headed
‘realists’ who disdain the possibility of secession may in fact end up imposing
significantly more costs. . .than might be true of adherents of what might seem
to be more ‘idealist’ and theory-laden support for self-determination.”
During the East Pakistan crisis, Kissinger believed
supporting Pakistan was essential. The master realist lost himself in the chess
game: independent Bangladesh is just one more piece, not the end game of
anything. But believing it was, the US supplied arms to Pakistan while it perpetrated
perhaps the largest slaughter since WWII. I’ll leave it to each reader to
decide if that was right; it certainly wasn’t necessary.
For all the pseudo-certainty, secession crises occur because
populations are alienated, so a better question is how to prepare for them. (For
example, should constitutions acknowledge the possibility or remain silent,
which Tom Ginsburg has discussed). What isn’t practical
is to do nothing. As Carr – not exactly an idealist – cautioned: “the defence
of the status quo is not a policy which
can be lastingly successful. . . To establish methods of peaceful change is
therefore the fundamental problem of international morality and of
My book is concerned with what our global order ought to
be. And for that reason concerned with what it is – and not interested
in ideal theories unresponsive to the Thucydidean strains in our nature. But billiard-ball
geopolitics not only lacks nuance, it lacks any theory of the relationship
between power and law. It misunderstands realism and my book to suppose that
what law ought to be is a question divorced from what power is. That truth
practically swallows international law whole, but it matters inside states too:
Constitutions aren’t simply maps of power – they seek to shape power. Good ones
don’t ignore what happened to Melos, but no one would use the Melian Dialogue
as their constitution – at least, if you did, why would you bother to write it
Good ones never forget what happened to Athens either.
Still, I take Balkin’s concerns seriously – I need to argue
the normative value of secession and its political feasibility. What
prospects are there for secession in a world the US still dominates?
A hegemonic America might not tolerate secessionist threats
to its power, but that’s not the same as opposing all secession. A hegemon
might find advantage in secession, especially since the non-intervention norm
has been degrading. The US might actively reshape the global order to promote
secession abroad, while exempting itself.
The US regularly reserves for itself an asymmetrical role
in the global architecture: the P-5, weighted votes in international
institutions. It negotiates major treaties (UNCLOS, VCLT, ICC) without ratifying
them or subjecting itself to their rules. Exempting itself from global norms
might look like hypocrisy, but it’s a hegemon’s normal behavior; Britain did it
in the 19th century. It’s Schmittianism: “sovereign is he who
decides on the exception.”
And therefore fitted nicely to American exceptionalism. The
US has often promoted different values abroad from those it defends at home. Secession
rights could be part of a revivified Washington consensus – distinguishing
American democracy promotion from the brutalism of China and Russia.
Exempting the US would be no great loss, since secession is
unlikely here. And in exchange for an American exception – American leadership
– we could make progress towards a practice that would actually be better for
many people in many places. A rule promoted by American primacy and reflecting
American interests and values (even if not applied to itself) sounds like a
better, and possible, world.
Relevance and Realism
I might be wrong. Like most people attracted to a philosophically
conservative view, I assume people are often wrong, and who do I think I am,
Martin Luther? Disproving my claim would at least put the unexamined
assumptions of the current system to the test. The answers I have seen – in the
literature, in the minds and mouths of actors who matter – tell me that test is
yet to be made.
But I’m less worried about being wrong than irrelevant – ‘academic,’
as Levinson worries some might think. I wouldn’t be the first academic to
succumb to fantasies of relevance, convinced his new Thomistic synthesis is
what Davos needs to hear. But this goes to the heart of the question, because
it seems not merely my idea, but any idea of secession is fatally
What troubles me about otherwise sensible path-dependence
or geopolitics – almost as much as Buckley’s regressions – is the fixity of
them, the aroma they exude of Laws Universal instead of dynamic human politics.
When I see how comprehensively critiques of secession conflate prediction with
preference – it won’t work and union is preferable – I wonder about the
fixity, and truth, of the former. It cannot be that secession cannot be. That’s
not realistic, or realist.
Andthat is what my academic argument is very much
engaged with, or rather against: the confident conclusion that secession isn’t
possible – and, not un-coincidentally, shouldn’t be – is the real object of my
attention. That is what needs reassessing.
I don’t deny the difficulty (you have only to look at the
title of my chapter on how to achieve a right of secession). But mine isn’t some
ideal theory’s state of nature or original position: My purpose is to ask how
change might be possible from our present position, not an illusory fresh
My book is theoretical, but not without regard for the
dangers of the world. It is general, and grounded in how politics actually work.
Thus the large section examining the mistaken assumptions (idealist and
realist) of our present way of doing things.
If two books as profoundly different as mine and Buckley’s
are both academic, I wonder if it is the idea of practical secession
that is thought irrelevant (and, let us whisper in parentheses, undesirable). Well,
that’s the very thing my book aims at – generally, abstractly, theoretically,
yes, but on this question, that may be of the highest relevance.
William Waters is professor at Indiana University Maurer School of Law.