Timothy William Waters
It’s page 131, opening his closing chapter, and riffing
on Billy Holiday, F.H. Buckley hints he “was only dreaming. . . .” Three pages
later, in the final paragraph, he reveals he’s a unionist, albeit one favoring
devolution and a chance for Americans to further sort themselves by ideological
zip code. America’s a glorious country, why break it up? Even if the 130 pages
before hadn’t convinced you about secession, you might feel it’s a bait and switch.
But let’s look at the bait. If you write a book,
even a short one, you should expect to be taken seriously. Besides, on a close
read, there’s no switch: Buckley’s been clear enough all along.
Pathways
to Division
The best of the book, near the beginning, is the
brief excursus into the constitutional possibilities for secession – a thing
orthodox opinion has assumed is right out, but Buckley shows is entirely
possible.
Buckley places greatest emphasis on a constitutional
convention, because it allows states to reform without federal involvement, as
amendment requires. Both convention and amendment are capacious, possibilitative
arguments; there’s nothing they couldn’t do, which isn’t the same as saying
they’re likely to do this. Still, the existing constitutional order, taken in
full, doesn’t prohibit secession; it just doesn’t provide for it yet.
His plausible originalist reading would allow
secession anyway. In antebellum America, ‘compact theory’ was an available and
probably better reading: it would be hard to explain abolitionists’ calls to exit the Union without admitting that
secession was legally plausible and morally defensible. Texas v. White ended the argument, but that’s a judicial
interpretation, and could be unmade by a court intent on reading the original.
That’s unlikely – at least, if conditions arose in
which a case actually made it to the court, it’s anyone’s guess whether those
conditions would incline the justices to Quebec
Reference-style pragmatism or redoubled perpetual union. It would be a
matter of the passions, and our last pre-secession crisis – which, as Buckley
points out, had chances for compromise right until the shells began to thud
into Fort Sumter – offers a cautionary tale about what radicalized moments do
to reasoned possibilities.
A reminder, too, that secession works best if it
works in peacetime. We typically analyze secession in light of the violence used
to suppress it, drawing insensible conclusions about their causal relationship.
It’s a shame we don’t allow advisory opinions, because the principle needs to
be validated before it’s needed – before we start naming places the Sunken
Cul-de-Sac or the Bloody Strip Mall.
Bigness
and the Real Source of Greatness
Apropos those as-yet-unhallowed shopping centers and
suburban tracts: America sure is a big country. 3rd in population, 4th
in size, world’s largest economy, military superior to any other. BIG! It’s
glorious.
The center, and perhaps the heart, of American Secession is all about bigness:
mostly the problems – greater
corruption, less wealth, less happiness, disproportionate military spending,
shrinking freedoms – though also the ill-defined shared thrill, the thing Buckley
repeatedly calls ‘glory.’
It’s understandable that Buckley runs right at the
problems of bigness. Many prejudices about secession assume the dangers and
undesirability of small units, and that’s well worth scrutinizing. But while
secession makes smaller units, it isn’t about them, and neither is its
justification. Secession isn’t about size, but separation: dividing a community
so its parts might govern themselves as they wish. That secession makes things
smaller is true, but incidental. (And not always true: Irredentists join larger
national units.)
So it’s not surprising that, despite criticizing
bigness across 60 pages and an appendix – half the book – he succumbs to its
dubious glories. The critique, like the problem, wasn’t really about size.
Although some of Buckley’s arguments
are about the effects of being big, for the ones he sees exercising
conservatives and liberals, ‘bigness’ is really a proxy for diversity.
It’s America’s polarized ideological adversaries who
drive Buckley to contemplate secession, just as it’s America’s bigness – its
glory – that ultimately keeps him in, despite all the problems and all the
troublesome liberals sharing the space who vex our author (as he vexes them).
America is exceptionally big, and perhaps a few
smaller Americas would gain the advantages Buckley sees. But for that to make
sense to the people themselves, they’d have to no longer be convinced of what,
for all the dysfunction and polarization, Buckley himself still is: that this
is a glorious nation based on ideals worth living for – together.
Particular
Complaints – Contingent Moments
America is divided – more than at any time since the
Civil War, which seems really significant when talking about secession. Polarization
has increased on many measures, including just sticking your finger in the air,
but does it add up to increased likelihood of division? I’m not an optimist,
but that’s exactly why I’m less concerned and unconvinced: the serenity that
comes from watching everyone act out Yeats’ “Second Coming.” I prefer to temper
the fierce urgency of now with the longue
durée, remembering that the past wasn’t Golden and the present isn’t Iron.
The proofs don’t ring true – for many readers, they’ll
just confirm their suspicion that the references to California secession are a
conservative cat’s paw – and they don’t feel serious enough.
But that’s actually the point: If the complaints don’t
seem to justify division (and as it turns out, they aren’t enough for Buckley),
they don’t have to. The proper grounding for secession is not objective proof
but subjective desire. If a significant segment of our glorious nation no
longer believes in our common destiny, that’s a problem for the project called
America, whatever their reasons are. Since we’re human, they’re likely to be
petty, venal and self-dealing. And principled – our reasons are always some
admixture of high sentiment and self-dealing: a few cents on tea imports and
unalienable rights.
In concrete cases, principles don’t decide,
circumstance does; that was Holmes’ point, and it’s true for secession, something
Holmes – who kept his uniform until he died – knew as well as anyone. Perhaps
Buckley focuses on the particulars because he’s making a case for this country, not thinking about the
general question. Even if you establish a right of secession, you still have to
convince the voters, to find some intrusive court ruling or infuriating federal
regulation that riles up the base. It would be great if that feeling were based
on facts, but what matters is the feeling.
Because actually, what Holmes said decides cases is
judgment or intuition. Behind the decision to separate is the felt sense of
being a different community. It’s not reducible to or justified by a rational calculus
or objective measure of well-being – and whether an ‘objective’ harm matters depends
on how much the harmed see themselves as part of some broader polity. Secession
springs from an intuition about diverse – divergent – identity: The key – at
least, the reason we ought to concern ourselves with the idea – is not that a
community will be better off on some empirical metric, but that that it feels
itself to be different, which makes the differences matter.
Regressing
to the Founding Fathers
One of the most singular qualities of American Secession is its curious dual
proofing mechanism, which relies equally on statistical regressions and quotes
from the Enlightenment.
Those thinkers, including the Founding Fathers,
thought a lot about size, but we risk mistranslation if we apply their terms to
our world. Even ‘small’ countries today are vastly larger than the units they
knew. Buckley calls Burundi a small country. It is – and has nearly three times
the population of the original United States. Let’s not bother comparing it
with Athens: I like quoting Aristotle too (even more than reading him), but I
sometimes wonder if all the distinctions between different polities are
apposite.
Buckley wonders too, from time to time. He notes
that Madison’s fears about majoritarian dominance looked very different when
populations were low and communications slow; one more reason to ask why our
constitutional discourse – even the dominant branch scornful of originalism –
continues to read so religiously and anachronistically from the Founders, a
kind of secular scholasticism.
Buckley’s antidote is statistics, so we can actually
measure what the Ancients and Fathers merely speculated on. But the problem
reappears: even if his measures are right, what do they have to do with our
case?
Buckley’s statistics are all about the problems of
bigness (thankfully, he doesn’t attempt a regression to measure ‘glory’), which
draw attention from the real issue. But it’s not clear an American secession would make units small enough to secure the
supposed benefits.
An American secession would create giants.
California would be the world’s fifth largest economy; today’s Confederacy
would be even bigger. You could divide America in half and both parts would be among the ten largest countries by population
and size. Divide it into three, and all
three would be in the top fifteen. (Ahead of Argentina, Kazakhstan and
Algeria in size, or Ethiopia, the Philippines and Egypt by population, if
you’re wondering how much happiness, corruption or wealth you’d get.) American
secession wouldn’t produce the small-polity Scandinavian benefits Buckley’s
regressions seem to reveal, let alone a government that might make us consult
Jefferson or Aristotle.
Concrete
but Unknowable
Even if one were convinced by the proofs in general,
satisfied that a New Confederacy would be smaller in statistically significant
ways, it’s not clear what they tell us about the concrete, Holmesian case.
Perhaps another day we’ll have a symposium on the limits
of empirical data; here, just this: obviously statistics can tell us a lot
about governance, but they’re only as good as the data, and international
relations offers among the worst data out there. We should be cautious, lest
these enchanting tools rule their master.
These models, even if right, suggest tendencies, not
concrete particularities, and the exceptions don’t so much prove the rule as
devour it. Statistics are good for disproving negative assumptions about
smallness, less so for giving precise policy guidance. I study secession and
war crimes, and my readings of Yugoslavia and Rwanda suggest how hard it is to
know what seemingly rational choices will lead to. We should have the courage
and humility to imagine that all these models may be accurate and that none of them explain any given
country, or recommend its path.
Besides, they distract us from the real reason we
ought to support a right of secession: not because we know with mathematical
certainty that it will make us better off, but precisely because we don’t. We
don’t know if we’re better off large or small, together or apart, and it’s in that
state of ignorance we must act. Our better angels do not offer knowledge, but
wisdom: In a world of irreducible uncertainty, we can do no better than to give
voice and validation to people’s beliefs about who they are, and let them
govern themselves as they may. That is the radical grace Buckley belatedly
discovers and proclaims: to bless union or
disunion, whichever we ourselves – our multiple, striving, competing selves – desire,
and then work, together, to make whichever good.
Timothy
William Waters is Professor of Law at Indiana University Maurer School of Law. You can reach him by e-mail at tiwaters@indiana.edu.