Monday, January 02, 2023

Managing Federation: Prenups and Marriage Counseling

Guest Blogger

This post was prepared for a roundtable on Federation and Secession, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Erin F. Delaney

It may be that “secession is back,”[1] but for Sandy Levinson, it was never out of style. In his words, the legitimacy of secession is “the most fundamental constitutional question of our entire history as a country,”[2] and he has provided nuanced analysis of its deployment within our constitutional discourse, recognizing the important theoretical and pragmatic issues that secession raises.

In thinking through these issues, Sandy has drawn profitably from an analogy to marriage,[3] the original introduction of which he credits to John Quincy Adams.[4] He further cites an 1861 address by Abraham Lincoln in which Lincoln, describing those defending secession, scoffed: “In their view, the Union, as a family relation, would not be anything like a regular marriage at all, but only as a sort of free-love arrangement,—[laughter,]—to be maintained on what that sect calls passionate attraction. [Continued laughter.]”[5]

Sandy suggests that this is no laughing matter. It cannot be that we would insist on marriage’s permanency. And further, if secession is the equivalent of a marital partner’s request for a divorce, why would we require mutual consent? The possibility of abusive or coercive and unequal partnerships makes imperative the option of allowing a single partner to sue to dissolve the marriage. Similarly, unilateral secession that allows for self-determination could take on a heightened power in contexts of colonialism or historic domination.[6]

In the breakup of a marriage, especially if there are children, there may be pragmatic constraints on complete separation. Parents “will remain in close contact, and it is a delusion to believe that they can soon, if ever, truly be rid of one another.”[7] So too in secession. Newly independent states cannot shift their geography and will be forced to continue to engage with one another—tempering the approach to leaving or providing case-specific tools for negotiating the break-up. (The ongoing Brexit saga provides a useful example.)

These analogies work particularly well in the context of those seeking self-determination in breakaway regions of unitary states, colonial states, or non-democratic federations. And it is possible that the focus on divorce has useful purchase in democratic federations as well. But scholarship and practice suggest that democratic federations pay far less attention to secession than Sandy might find warranted.

Federal theory in the twentieth century is first developed by institutionalist political scientists, such as Kenneth Wheare, who took the American federation as a lodestar.[8] Thus, the result of Texas v. White was taken as a core aspect of the federal construct: Federation does not admit of secession.[9] And this understanding was used to differentiate federation from confederation.[10] And in practice, explicit textual provision for secession is rare in federal constitutions, and none provides for unilateral secession.

So, why is it that federations don’t draft prenups? Rather than ensuring orderly exit, federal constitutions focus more on voice (e.g., constituent unit representation at the federal level) and loyalty. Voice and loyalty are often reinforcing, and exit (particularly easy exit) might well undermine their efficacy.

In forthcoming work,[11] Ruth Mason and I argue, much like Sandy, that federation should be understood as a type of long-term relationship contract, such as a marriage. The parties make “a long-term commitment to pursue shared goals, the fulfillment of which will enhance [their] joint welfare,”[12] but given uncertainty, the parties’ obligations cannot be fully specified in advance. The goal of maintaining the union is supported by norms, including obligations not to harm federal members as well as those of good faith, cooperation, and mutual aid.[13] These duties generate the bonding features of mutual trust, reciprocity, and self-restraint—in other words, federal solidarity.

Outside of the United States, federal solidarity can be seen, inter alia, in the Bundestreue doctrine in Germany, in the heightened requirements of good faith between cantons in Switzerland, in the introduction of “federal loyalty” as a principle in the 1993 Belgian constitution, and in extensive comparative and theoretical scholarship. Drawing from comparative analysis and federal theory, we argue that elements of federal solidarity are readily identifiable in the United States and that conceiving of them as such helps to clarify doctrine, for example, around the dormant commerce clause and interstate sovereign immunity.

Indulging the marriage metaphor just a bit longer, we might think of these norms and judicial or political efforts to reinvigorate and protect them as an ongoing process of marriage counseling: taking stock of the relationship and working to help the parties remember why they got together in the first place.

Sandy recognizes that some kind of cooperation is necessary in a federation—he suggests it could be understood as Blanche DuBois’s “‘the kindness of strangers,’ joined together in an often uneasy union”[14] As he notes, the “withholding of such kindness . . . . may only add to the widespread impression that the United States suffers under a dysfunctional form of government”[15]—as when, at the outset of the pandemic, the governor of Florida suggested that only Floridians would be allowed off an infected cruise ship.[16] But the constituent units of a federation aren’t meant to be strangers, and federal obligations go beyond kindness.

We argue that courts, politicians, and academics should all take solidarity seriously, but as Mark Graber has written, “relational contracts only survive so long as cooperation remains mutually beneficial”[17] or, we can add, morally sustainable. Counseling works only so long as the parties are invested in the process and both believe there is something worthwhile to save. In a context of extreme polarization, with ever-increasing distrust and dislike, parties tend to call lawyers rather than therapists.

And here I return to Sandy, whose broader research agenda embraces the potential of and opportunities for radical change within a negotiated reform process. As pessimistic as he may be about elements of our current federal system, he presents unflagging dedication to improvement and renewal—welcome inspiration to (now generations!) of scholars and students alike.

Erin F. Delaney is a Professor of Law at Northwestern University Pritzker School of Law. You can contact her at 

[1] Tom Ginsburg & Mila Versteeg, From Catalonia to California: Secession in Constitutional Law, 70 Ala. L. Rev. 923, 925 (2019).

[2] Sanford Levinson, ‘Perpetual Union,’ ‘Free Love,’ and Secession: On the Limits to the ‘Consent of the Governed’, 39 Tulsa L. Rev. 457, 461–62 (2004) [hereinafter Levinson, ‘Perpetual Union’].

[3] Sandy does acknowledge David Miller, Secession and the Principle of Nationality, in National Self-Determination and Secession 62 (Margaret Moore ed 1998), whom he describes as concluding “marriage metaphors a simply are not helpful in considering the pros and cons of allowing secession.” Levinson, ‘Perpetual Union’, at 468.

[4] Sanford Levinson, The Twenty-First Century Rediscovery of Nullification and Secession in American Political Rhetoric: Frivolousness Incarnate or Serious Arguments to be Wrestled With?, 67 Ark. L. Rev. 17, 63 (2014) [hereinafter Levinson, Frivolousness Incarnate?].

[5] Levinson, ‘Perpetual Union’, at 466 (citing Abraham Lincoln: Speeches and Writings 1859-1865 202 (Don E. Feherenbacher ed., 1989); Levinson, Frivolousness Incarnate?, at 63.

[6] See Christina D. Ponsa Kraus, Empire by Gaslight (on file with author).

[7] Levinson, ‘Perpetual Union’, at 467.

[8] K.C. Wheare, Federal Government (1963). For an excellent discussion of the influence of the U.S. system and the twentieth century evolution of federal thought, see Stephen Tierney, The Federal Contract (2022).

[9] See, e.g., Geoffrey Sawer, Modern Federalism 1 –2 (1969); Ivo Duchacek, Comparative Federalism 207 –08 (1970); Preston King, Federalism and Federation 60 (!982).

[10] See, e.g., Hans Kelsen, General Theory of Law and State 323 (1949).

[11] Erin F. Delaney & Ruth Mason, Solidarity Federalism, 98 Notre Dame L. Rev. __ (forthcoming 2023) (on file with author).

[12] Charles J. Goetz & Robert E. Scott, Principles of Relational Contracts, 67 Va. L. Rev. 1089, 1229 (1981). See also Elizabeth S. Scott & Robert E. Scott, Marriage as Relational Contract, 84 Va. L. Rev. 1225 (1998).

[13] These duties are further supported by the dual and nested nature of federal citizenship—which dovetails with secession in important ways. See Delaney & Mason, Solidarity Federalism (discussing the role of federal citizenship and internal minorities in seceding states).

[14] Levinson, Frivolousness Incarnate?, at 26 n.53.

[15] Levinson, Frivolousness Incarnate?, at 26.

[16] David Oliver et al., Florida Gov. Ron DeSantis to accept state residents off Holland America cruise ships, USA Today (last updated April 2, 2020). For other examples, see Delaney & Mason, Solidarity Federalism.

[17] Mark A. Graber, Dred Scott and the Problem of Constitutional Evil 220 (2002).

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