Sunday, January 08, 2023

Secession, Marriage, and Counseling

Guest Blogger

Sanford Levinson

This post was prepared for a roundtable on Federation and Secession, convened as part of LevinsonFest 2022.

As always, I begin with heartfelt thanks to the people who have actually made this quite remarkable series of gatherings possible. Now former-Dean Ward Farnsworth, who generated the idea and then elicited the willing cooperation of one of the truly most remarkable people in the worldwide legal academy, Richard Albert. Richard in turn recruited Ashley Moran to administer the various “Levinsonfests,” and the truly incomparable Trish Do made Zoom work for the people who logged in and participated from literally all over the world. But I also must emphasize my thanks to the people who presented papers that contributed to genuinely serious discussion of the various topics. It is not that I don’t appreciate, deeply, the kind things said about me, but the real point is to dig more deeply into the various problems under discussion. From my point of view, the “Levinsonfests” have been a huge success, including, of course, this present session on secession. 

Secession as an issue raises two quite different problems. One is particular to those of us who view ourselves as specialists on American constitutional law. The second, however, arises for anyone who is interested in the general phenomena of politics and, therefore, the frequency with which “new states” emerge from existing ones via secession. No one can possibly understand post-World War II politics without paying attention to the latter reality, most dramatically, of course, in what used to be the Union of Soviet Socialist Republics, but also presented by what we now refer to as the “former Yugoslavia” and, for that matter, the former European Union that used to include the United Kingdom but now does not, thanks to Brexit.

I wear (at least) two hats, one as an American constitutional theorist, the other, increasingly, as a political scientist simply devoted to trying to understand what is happening in the world at large. Let me begin, though, with reference to the first, not least because four of the five presentations are centered on the problems posed by our own Constitution and its tradition of analysis. My friend and case-book co-editor Akhil Reed Amar believes that it is “nonsensical” to argue that there was the slightest merit to the Southern argument for secession as presented in 1860-61. Another old friend, Paul Finkelman, appears to agree, inasmuch as he presents an eloquent brief on behalf of the suppression of Southern independence. For better and, possibly, for worse, I continue to disagree if the question is the completely abstract one of whether the United States Constitution, best understood, includes an “exit option” for subunits or subpopulations that no longer feel adequately fulfilled within the broader Union. I phrase it this way because I have no doubt whatsoever that the particular cause for which the South seceded was evil and iniquitous. But that is orthogonal to the abstract question about the possibility of secession. After all, the first secessionists met in Hartford in 1814, and William Lloyd Garrison famously endorsed “no Union with slaveholders.” I have no particular brief for high Federalists from New England, but I do wonder what we might think had Garrison actually been influential and several New England states accepted his view and tried to secede, say, after the Supreme Court’s decision in Prigg v. Pennsylvania or the Compromise of 1850. 

Still, I quite agree with Paul that the actual endorsement of Southern secession, once one knows the impetus behind it, is equivalent to “endorsing outcomes that are inconsistent with basic human rights and fundamental justice.” It might well have been “necessary and proper” to engage in the armed resistance that ultimately cost 750,000 lives in order to prevent the continued maintenance of slavery in the secessionist states. The arguments would be similar to those involved in contemporary justifications of “humanitarian intervention,” which have exploded any traditional notions of “sovereignty” in favor of the legitimacy of armed intervention by onlookers in order to prevent denials of fundamental human rights. 

But, obviously, that justification is quite different from Lincoln’s own argument, which, among other things, notably refused to suggest that slavery must be extirpated even in his own lifetime in the states where it already existed. “Mystic chords of memory” may be of some value to the political sociologist but are basically irrelevant to analyzing legal arguments, and I obviously believe that the legal arguments proffered by at least some of the Confederates were at least as plausible as those offered by opponents. I think that Kenneth Stampp was basically correct many years ago when he said that, at least for historians, the legitimacy of secession remained an open—and perhaps unanswerable—question, a conclusion recently reaffirmed by Daniel Hamilton. I am also less confident than Paul that one can ascribe “starting [the] war” solely to the hotheads who fired on Fort Sumter. Lincoln did whatever he could to encourage the Southerners to fire the first shots. What he did not do, obviously, was either to agree with his predecessor James Buchanan, that the national government was without the power to prevent secession even if, as Buchanan in fact believed, that would be illegal, or to embark on serious negotiations with the South as to how to achieve some sort of peaceful secession. 

My reasons are based on what are professed to be root American conceptions of politics. Thus, I have for some years now been engaged in a friendly dispute with yet another close friend, Mark Graber, about the nomenclature of 1776 and its aftermath. Following Harvard (and British-born) historian David Armitage, I refer to the Secession of self-described Americans from the British Empire, based on the reasoning set out in the Declaration of Independence. Among the central notions found in that perhaps cryptic document is that “one people” has a right to self-government, i.e., government “by consent of the governed.” To be sure, it is easier to make that argument if those seeking to secede can plausibly claim to have been the victims of a “long train of abuses,” but that is not in fact presented as juridical condition precedent to seeking independence. It is worth pointing out, though, that several of the secessionist states did in fact present their own set of complaints and “abuses,” including what South Carolina, with a sublime lack of irony, described as the “nullification” by Northern states of the Fugitive Slave Law of 1850 and its command that fugitives be returned to their states of origin regardless of the assault on the “free states’” sensibilities. 

Perhaps “prudence” dictates waiting until such a bill of particulars can be presented, but the theoretical case for what I call “Wilsonian self-determination” does not depend on oppression. It is enough, I believe, for a group to feel alienated from majorities who in actuality are permitted to govern; the secessionists wish to be in charge of their own fate, with, for example, its own flag, national monuments, holidays, and the like. 

Paul offers a decidedly different reading of the Declaration. I agree that it is a possible reading, but I deny that it is the only plausible reading. I am doubtful, for example, that the Americans would have been mollified by being offered a token number of seats in the British Parliament, which at the time, of course, featured many rotten boroughs and a remarkably restricted British electorate. What they wanted was freedom from parliamentary control—the “sovereignty” of the “King in Parliament”—and genuine self-government. There is nothing in the Declaration itself describing what such “self-government” might look like. And, of course, the Constitution itself fundamentally punted on the question by leaving basic electoral mechanisms up to the states. (If one takes some contemporary arguments seriously, then they were left to the autonomous choices of “independent state legislatures”!) We know that the original electorate was remarkably restricted at the time, even if it would become more inclusive relatively early in the 19th century. But, as Saul Cornell and Gerry Leonard have recently argued, America prior to the War never escaped the overall description of a “herrenvolk democracy.” 

Paul might well agree. “No one,” he writes, “with a straight face, could argue that the South was not fairly represented—or even over-represented—in the United States government.” But, rightly or wrongly, a sufficient percentage of Southern elites, often backed by voters in referenda, increasingly believed that elections would no longer protect their distinctive Southern culture and political economy. Lincoln was, after all, elected with only 39.8% of the popular vote in 1860. Perhaps he would have prevailed in a ranked-choice voting system, but, obviously, we’ll never know. I agree that one could well believe that the losers of the 1860 election should have been “good sports,” in part because there is no reason to believe that the Lincoln Administration would have been able to do very much if the House and Senate continued to have full representation from the eleven secessionist states. But this is a matter of political tactics, not of fundamental political or constitutional theory. (Presumably, Paul would not take solace in the argument that a united Democratic Party could have returned to power in 1865 and turned the Lincoln Administration into the equivalent of a blip of little real consequence for American constitutional development.) 

My view, for what it is worth, is not that there is a single “fact of the matter,” a Dworkinian “right answer,” to the question as to whether states had/have a right to secede from the Union. I think that conscientious lawyers, making use of all relevant materials conducive to “constitutional interpretation,” can disagree on what the answer is. In addition, given the magnitude of the issue, I’m inclined to believe it will inevitably be resolved by politics, including wars that are extensions of politics by other means, rather than by legalistic arguments. There is a reason, after all, that the Lincoln Administration did not seek an injunction prohibiting one of the Confederate States from leaving the Union (perhaps on the basis of the arguments proffered by Chief Justice Chase in 1869 in Texas v. White and his notion of an “indestructible Union of indestructible states”). One can be confident that none of the would-be secessionist states would have taken such an injunction seriously. It would truly become a “parchment barrier,” as may be the case with all simply legalistic arguments designed to resolve the actual political difficulties presented by secessionism. 

So, not surprisingly, I express my warm appreciation for the participation of Cynthia Nicoletti in our discussion. I think her book on why Jefferson Davis was never in fact tried for treason is essential reading for any American lawyer, including students being trained to become lawyers and, along the way, to realize both the strengths and weaknesses of “legal resolutions” of deeply political controversies. It is not only that she and I both agree that there is no “very clear answer to the question of secession’s legality.” Far more to the point is her demonstration that skilled lawyers within the Johnson Administration were fearful that they could not gain a conviction. Part of the reason, of course, was fear that no jury would actually convict Davis. Ex parte Milligan posed a clear and present danger to the possibility of conviction (another fact that students should become aware of and asked to discuss). But even more serious, at least to legal academics, should be the view that it was an open question whether he had in fact committed treason by supporting secession. As already suggested, answering that question requires that one address some of the most serious conundra posed by the Constitution (and the Declaration of Independence) themselves. As she writes, “The founders themselves left the question alone,” perhaps “because they did not perceive the secession of one group of states organized by region to present a pressing problem.” I confess I find this somewhat implausible given the experience of American secessionists themselves vis-à-vis the British as well as the recognition by Madison and others that the most fundamental divided in American politics was not “small states” versus “large states,” but, rather, “slave states” versus the increasing number of “free states.” There is also the embarrassing fact that Vermont, which fought for American independence, was denied admission to the Union until 1791, because, after all, it had seceded from New Hampshire and New York, which did not take kindly to such domestic use of arguments presented against Crown and Parliament. So that makes it more likely, I think, that “they hoped to avoid the question through strategic silence,” similar perhaps, to evading the question as to who exactly was a “citizen of the United States.” 

It is obvious that I believe that nomenclature is important. Whether one refers to 1776 as a “secession” or a “revolution” depends on a whole set of usually unexamined assumptions. Similarly, as Alison LaCroix recognizes, the use of “sovereignty” within our political and legal discourse is scarcely innocent and without consequences. I continue to be mystified why Marshall chose to use that term to refer to Maryland. But, as Alison also notes, I am also dubious of Marshall’s decision to “constitutionalize” the issue of Maryland’s taxation of the Bank rather than leave it, as Federalist 32 suggested was proper (and even necessary?), to the political process to work out the inevitable problems posed by “concurrent jurisdiction.” This has contributed to the modern notion that all constitutional controversies are to be worked out within the federal judiciary, a notion alien to the political thought of the time even if one concedes the propriety of at least some judicial review. Of what I call McCulloch II, one must ask not only if Marshall’s reason for his decision—“the power to tax is the power to destroy,” and therefore states have no power whatsoever to engage in even a peppercorn of taxation, however reasonable, of federal enterprises—but also whether the country, all things considered, is better off for the judicialization of the issue. As Mark Graber has demonstrated, one can have a “legalized” Constitution without having a “judicialized” one; debate can take place, as was largely the case at the time, within Congress and without any notion of relying on the Court for a final determination. As I argued in the essay adverted to by Alison, Congress could easily pre-empt any state taxation of federal instrumentalities without the aid of the Court. Or, perhaps as likely, it could decide on when it would acquiesce in some reasonable level of taxation designed, say, to recover costs imposed on the state to support those instrumentalities, such as police and fire protection. 

Rebecca Zietlow also focuses on American constitutionalism and, particularly, the issue of “state borders” and the “comity” that one member of the national Union owes to another with regard to the enforcement of laws that might be regarded as antithetical to the views of the former state. Not surprisingly, she evokes the current Dobbs case in her discussion. To what degree will anti-abortion states be able to use their powers, within a federal system, to make difficult, or even prevent, the crossing of state lines in order to engage in what they will have defined as the murder of innocent fetuses? My own view, which I hope is mistaken, is that the contemporary debate about abortion in the United States, especially as defined by activists, is quite akin to that concerning slavery in the 1850s. That is, for better or worse, the “federal consensus” continued to operate by which each state was granted what was viewed as constitutionally required autonomy with regard to its policies on slavery—save, of course, for the duty to return fugitive slaves. This “consensus” was most dramatically endorsed by Abraham Lincoln himself, who supported the Corwin Amendment in his First Inaugural Address (to the consternation of Frederick Douglass). That Amendment, of course, would have placed in the text of the Constitution the recognition of complete autonomy of states and concomitant imperviousness to any legislation passed by Congress. The War was precipitated by conflict over policy in the territories, but no one of stature seriously argued that Congress would (or, more to the point, could) invalidate slavery in Virginia or Alabama. Quite obviously, the “consensus” collapsed during the 1860s, as instantiated in the Thirteenth Amendment, about which Zietlow has written incisively. 

Justice Alito (and his colleagues in the majority) apparently believe that Dobbs in effect establishes a new “federal consensus,” in which each state will be allowed to protect or even to criminalize abortion. One might think in this context of capital punishment, where there are almost no political pressures to “nationalize” the (in)ability of a state to kill (or murder) those sentenced to death in lawful procedures. Everyone seems willing to allow the Court to resolve the issues attached to capital punishment. My own view is that both sides in the abortion debate are determined to achieve a national solution and that Dobbs in no way represents the “last word” on state power. I would say for good reason. If one believes that abortion is the murder of innocent fetuses, then why should one tolerate, say, California’s willingness to license such murders if there is federal power to prevent that? If, on the other hand, one believes that autonomy over reproduction, including access to abortion, is essential to a woman’s right to flourish as an equal in American society (or anywhere else, for that matter), then there is no reason to tolerate oppression in Texas any more than we might wish to tolerate, save for reasons of abject political necessity, the oppression of women in, say, Saudi Arabia. State-by-state regulation of abortion will reflect only the inability of a congressional majority to gain sufficient votes for a national solution, not a general consensus that state autonomy is in fact the preferred solution. (I would be genuinely surprised if the ultra-Catholic Alito actually supported such a solution, but who really knows?) 

Zietlow concludes her comments as follows: 

If our federation is like a family . . . , principles of interstate comity are the ties that bind our family together. Today, as in the antebellum era, battles over state borders and

Interstate comity are further dividing our already polarized nation. Whether our conflicts today will escalate to the point of secession remains to be seen. 

I would be surprised if abortion triggers secessionism (rather than civil violence akin to civil war) for the simple reason that like most contemporary controversies, it is less purely “regional” than emblematic of strong divisions within states. Texas, for example, is an ever-more “blue state” of four of the eleven largest cities in America, as well as El Paso. But they are embedded in an ever-more “red state” of a far less urban (or urbane) Texas that continues to have a greater population than the “blue Texas.” Even in 1861, Texas was divided over secession, as illustrated especially in the futile opposition of Texas’s great hero Sam Houston. Local prosecutors in Texas and Florida have both indicated their disinclination to prosecute anyone for violating state-wide laws attempting to limit access to abortions. It is a mistake to view states as monolithic entities. The political scientists’ maxim that all groups, including Congress or the Supreme Court, are a “they” and not an “it,” is obviously true with regard to the states of the Union. If that was true for 1861, it is even more valid 160 years later. 

But that very reality makes secessionist fantasies, which I freely confess to having on occasion, of little practical import. It is not only because there is, at present, no serious secessionist movement within the United States, in contrast to a number of countries across the world, but also because any such movement would have to confront the sharp differences within every state that would prevent any widely accepted decision within given state boundaries to leave the Union. Austin would immediately try to secede from a secessionist Texas, just as one can easily imagine that vast numbers of California’s 40 million people who live outside the coastal region would resist secession led by liberals from San Francisco or Los Angeles.

But these “practical” concerns, at least with regard to the United States, are certainly not dispositive with regard to the general issue of secession as a political possibility elsewhere in the world. As I move from addressing the particular American case to the broader world situation, I fairly confidently assert the following: No one either supports or opposes in toto any and all secessionist movements. As a matter of fact, all of us pick and choose, usually, no doubt, on the degree to which we view “justice” (in addition to claims of self-determination) as supporting the secessionists as well as the degree of actual disruption and instability inflicted on the general international order. Consider only the fact that much “Wilsonian self-determination” is based on theories of ethnic identity and carries with it the implication that national minorities will have to accept their subordinate place in the regime (think of contemporary Israel in this regard). Even worse, national minorities may be encouraged or forced to “resettle” in more hospitable regimes less committed to the integral nationalism that often underlies arguments for “self-determination.” I am not a fan of “nationalism” per se. But that does not entail a lack of sympathy with certain “nationalities” who are under the thumb of groups with whom they do not identify and, indeed, look on as at best indifferent to the interests of others or at worst as active oppressors. 

So that brings me to Erin Delaney’s marvelous meditation on “Prenups and Marriage Counseling.” For better or worse, many discussions of secession draw on analogies to marriage. Erin adverts to Abraham Lincoln’ scoffing at secessionists as proponents of “free love” who apparently didn’t recognize the sanctity of marriage and the impossibility of unilateral divorce even as “passionate attraction” perhaps waned. (And it was clear that Lincoln was in no mood to negotiate the terms of a mutual agreement to end the marriage.) As she notes, the transcript indicates that his comment elicited “laughter” from the audience, but, of course, the issue is no laughing matter, either then or now. And shouldn’t we recognize, in addition, that we ourselves live in a culture that has largely legitimated unilateral divorce, in part because of a commitment to the importance of individual flourishing and the concomitant sympathy for those who feel stifled by being stuck in an iron cage perceived as detrimental to that flourishing? 

So why not accept the view of the Canadian Supreme Court that a clearly expressed desire to divorce should, at the least, be responded to with serious negotiations about how to achieve a peaceful dissolution should accommodation not be possible rather than, as in Spain, a thundering declaration that secession is unthinkable and its proponents therefore criminals who can be locked up? Erin’s reference to “prenups” is enormously suggestive, an important complement to focusing only on dissolution after marriage ceremonies (and expectations) that are left unanalyzed. Might one suggest, though, that there is a crucial difference between (most) first marriages and federal countries beyond the obvious fact that the first concerns only discrete individuals? Rather, I would emphasize the fact that (most) first marriages, and, for all I know, even second and third marriages, especially if they follow death of a partner instead of, say, an acrimonious divorce, are likely to feature participants who quite literally passionately wish to wed, who perhaps even adhere to the old notion of “two becoming one” because, after all, both partners believe they have found their “soul mates” with whom they wish to spend the rest of their lives. 

Divorce is testimony, among other things, to the illusory nature of such dreams (or fantasies). Ronald Barth, I believe, once wrote that “I will love you forever” can be said only once (or, at least, only to the same person). But, presumably, the couple becoming engaged and then married do believe that their love will last forever, even if (especially if?) each has had earlier loves that dissipated. In any case, one wonders how many young couples draw up pre-nuptial agreements that include reference to what will happen upon a decision to divorce. Interestingly enough, that is one of the classic functions of the ketubah in Judaism, which is indeed a contract that contemplates, even on the day of marriage, when the ketubah is signed, the possibility of dissolution. But even for most contemporary Jews, ketubahs no longer refer to division of property upon divorce, just as almost no contemporary wedding vows actually say (something like) “I hope that you continue to be a person I will wish to live with and minister to until death, but if not, then I will certainly feel free to leave you and give you a fair division of our mutual resources.” Instead, the wedding ceremony is devoted to professions of endless love and commitment. 

Federalism, however, is different. Alfred Stepan suggested many years ago, as do Malcolm Feeley and Ed Rubin in their own book Federalism: Political Identity and Tragic Compromise, that federalism as a constitutionalized order always bespeaks a degree of animosity and mistrust. (This is contrasted with unitary systems that nonetheless adopt, for good political reasons, policies of decentralization and subsidiarity, always subject, however, to reversals by the central government should that seem desirable.) Geographically dispersed groups that fundamentally dislike and distrust one another nonetheless may agree, almost always for reasons dealing with the necessity to form strong military alliances against international predators or internal opponents (like American Indigenous Nations) or to create a more integrated economy, to coalesce or to remain in an uneasy pre-existing relationship. Stepan calls the first, best seen in the American experience, “coming together” federalism, where thirteen quite different states (and, juridically speaking, “sovereigns” within the international system) agreed to come together in order to protect themselves, collectively, against a variety of military threats and to overcome the trade wars generated by separate states exercising their full tariff powers. Spain is the best contemporary example of a “remaining together” rationale, where those negotiating the terms of the new Spanish constitution following the death of Franco agreed to give Catalonia and the Basque provinces asymmetric authority especially over language in order to maintain their membership in what the Constitution described as an insoluble Spanish union. In other countries, special deals might be offered with regard to profiting from natural resources. From this perspective, constitutions can perhaps be imagined as “prenups” precisely because the partners are not smitten with one another and confident that love will always find a way to overcome the inevitable vicissitudes of actually living together. 

Furthermore, federalism becomes “constitutionalized” in a double sense: Not only does the foundational document set out the terms of perhaps uneasy union. Most of the time, the judiciary is also granted authority to enforce the terms, given the fact that the parties are not willing entirely to rely on the good faith of promises made in the heat of the moment. (See, e.g., McCulloch II.). Justice Holmes stated that the United States could probably easily tolerate the demise of judicial review over acts of Congress, but not with regard to acts of state that might wish to renege on their apparent agreement to curtail their previous autonomy. Of course, strong proponents of “states’ rights” might disagree with Holmes and argue that it is Congress that is especially likely to overreach and attempt to create the “consolidated” government feared by opponents of the new Constitution. Those debates, present at the creation, continue of course to dominate much discussion of the current Court and attendant doctrines. 

So Erin asks a fascinating question that should interest all students of comparative constitutional design: why don’t constitutional designers in what might be easily described as “fundamentally divided societies” explicitly address the possibility of secession as a kind of guardrail to protect the interests of at least some groups that enter a federated union with justified trepidation and need reassurance that they will not be subjected to a bait-and-switch by the hegemonic power in control of the new constitutional order? I was genuinely surprised, even shocked, to be told by authoritative scholars that those drafting the South Africa Constitution in the 1990s never even contemplated putting in a clause explicitly addressing the possibility of secession. Do we applaud or criticize this reticence? More to the point, is it a model or a cautionary example to other modern constitutional designers in divided societies that are tempted to adopt federal solutions? 

So how is it, in her words, that “federal solidarity” or “loyalty” will be engendered against a presupposed background of at least some animosity and mistrust? Madison famously offered federal textual protections as an example of the “parchment barriers” that one ought not really rely on. Better than textual guarantees, say, of limited powers of the national government, would be structural provisions that would provide the wary states with greater protection. Perhaps one conceives the original Senate, appointed by state legislatures, as such a guardrail, but that would have been far more likely had senators been viewed more truly as “ambassadors” from the states and subject, say, to recall by unhappy state legislators. In any event, there is no plausible argument that the present Senate serves to protect anything truly valuable about “federalism,” whatever we might think that would require, instead of simply as a perverse “affirmative action” program for the residents of small states, who have grotesquely more political power than do their counterparts who actually live in the areas inhabited by most contemporary Americans. A few hardy souls do advocate repealing the 17th Amendment and returning to the original Constitution of 1787, but, to put it mildly, they do not seem to have made many converts. 

Erin also posits another metaphor, that of “marriage counseling,” which is also worth thinking about. After all, when does such counseling usually take place, if at all. It is, presumably, after problems appear in the marriage. As Leonard Bernstein suggested, there can be “trouble [even] in Tahiti,” regardless of initial assumptions (and hopes) that marriage would be paradisical. But, of course, effective marriage counseling almost always requires the cooperation of both partners, and what if one of them disagrees? The Canadian Supreme Court suggested in effect that a Quebecois majority, if expressing itself clearly and with sufficient votes, could force the rest of Canada to enter into the counseling project and not simply respond that “what you’re suggesting is impossible and can’t even be talked about.” 

Can litigation be a substitute for “counseling”? I suspect that the answer is no, for the simple reason that lawyers are trained to “stand on principle,” to turn everything in “Dworkinian” contests over what it means to “take rights seriously” instead of trying to achieve often messy and perhaps even incoherent compromises that nonetheless keep the union (or Union) together. One might, of course, believe that ordinary politics could operate as the de facto venue for counseling (back to Federalist 32), but that seems unlikely in an age of polarization. Was “Brexit” really necessary in order to achieve what, by stipulation, might have been desirable and defensible modifications of the European treaty system? We’ll never know because Great Britain was subjected to a crazy system, thanks to Eton- and Oxford-educated David Cameron, of a one-time binary choice by simple majority whose actual negotiation was put in the hands of zealots who would not have to return to the British people for ratification of their decisions. 

Returning to secession, though, should we in fact view secession as a logical part of the “federal system,” just as divorce is now viewed as a logical part of the overall “marriage system”? Even the most besmitten enter into marriage knowing, at least in the back of their minds, that marriage in fact need not be forever. Perhaps that fact ends up encouraging actual marriage by those with inevitable doubts—think of Stephen Sondheim in this regard! And, even more to the point, perhaps many (most?) marriages entered into under conditions of ambivalence in fact turn out to be “good marriages,” where both (or, perhaps, in the future, more than two) parties genuinely flourish; love and commitment become ever deeper, and the possibility of “no-fault divorce” becomes ever more irrelevant. But this suggests that an “old-fashioned” system whereby divorce was indeed impossible might have discouraged at last as many marriages that would in fact turn out well. It’s all truly complicated. 

At a recent meeting of the American Society for Legal History, Christian Fritz, introducing a marvelous new book he will be publishing next year on the concept of “interposition” in American constitutional history, suggested that it served as an opportunity by a single state to issue a “wake-up call, “ to “sound the alarm,” that something was potentially amiss in the American garden of federalism. “Interposition” is milder than “nullification” and, even more certainly, than secession. As a discussant, though, I offered the caveat that interposition might indeed be analogous to an announcement that “counseling” was in order because the national government was breaking the terms of the pre-nup. But then, I asked, what if the counseling proved unsuccessful? Might a state legitimately move to the petulance of “nullification”? Or might it simply say, “We want out, since we no longer trust you to be truly loyal to the mutuality and reciprocity on which our marriage was founded”? Fritz wants to draw a sharp line between Madisonian “interposition” and Calhounian “nullification” and Confederate secession. I am more skeptical, since I believe so strongly that all of them relate to the basic empirical reality of all federal systems, which is the existence of deep mistrust based on various animosities (which we may or may not sympathize with, of course). 

Erin’s penultimate paragraph is, I think, spot on: 

…. [C]ourts, 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.’ 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. 

Calling in the lawyers is almost never a sign of health in a relationship. Do lawyers really realize that, and do/should we teach this to our students? But how does one achieve a society where counseling can be genuinely effective in the absence of courts (and lawyers) willing to enforce the counselor’s advice (or decree)? 

Sanford Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School. He is also a Professor in UT’s Department of Government and a Visiting Professor of Law at Harvard Law School. You can contact him at

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